SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________
FISERV, INC.
(Exact name of Registrant as specified in its charter)
WISCONSIN 39-1506125
(State of jurisdiction of (I.R.S. employer identification
incorporation or organization) number)
255 FISERV DRIVE
BROOKFIELD, WISCONSIN 53045
(414) 879-5000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
KENNETH R. JENSEN
SENIOR EXECUTIVE VICE PRESIDENT
FISERV, INC.
255 FISERV DRIVE
BROOKFIELD, WISCONSIN 53045
(414) 879-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
_________
Copies to:
ROBERT COULTAS, ESQ.
Boylan, Brown, Code, Fowler,
Vigdor & Wilson, LLP
900 Midtown Tower
Rochester, NY 14604
(716) 232-5300
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /x/
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SHARES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED SHARE (1) PRICE FEE
Common Stock, $.01 par value 1,033,900 shs. $27.275 $28,199,622.50 $9,724.01
(1)Estimated pursuant to Rule 457 solely for the purpose of calculating the
registration fee.
_________
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A)
OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE>
SUBJECT TO COMPLETION APRIL 18, 1995
------------------------------------
PROSPECTUS
- ----------
1,033,900 Shares
FISERV, INC.
The Financial Data Services Company
COMMON STOCK
This Prospectus may be used in connection with the distribution of up to
1,033,900 shares of FIserv, Inc. Common Stock, $.01 par value (the "Shares"),
proposed to be disposed of from time to time by the Selling Stockholders named
herein. See "Selling Stockholders". The Company will not receive any of the
proceeds from the sale of the Shares. The expenses of this registration will be
paid by the Company. The Common Stock of the Company is traded in the NASDAQ
National Market System under the symbol "FISV". On April 18, 1995, the
reported closing sale price of the Common Stock as quoted on the NASDAQ National
Market System was $27.25 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The distribution of the Shares by the Selling Stockholders may be effected
from time to time in one or more transactions (which may involve block
transactions) in the over-the-counter market, on the NASDAQ National Market
System (or any exchange on which the Common Stock may then be listed), in
negotiated transactions or otherwise. Sales will be effected at such prices and
for such consideration as may be obtainable from time to time. Commission
expenses and brokerage fees, if any, will be paid individually by the Selling
Stockholders. See "Plan of Distribution".
May , 1995
<PAGE>
NO PERSON IS AUTHORIZED IN CONNECTION WITH THE OFFERING MADE HEREBY TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS, AND ANY SUCH INFORMATION OR REPRESENTATION NOT
CONTAINED OR INCORPORATED BY REFERENCE HEREIN MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE COMPANY OR BY THE SELLING STOCKHOLDERS. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY BY ANY
PERSON IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL FOR SUCH PERSON TO MAKE SUCH
AN OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS AT ANY TIME
NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES IMPLY THAT THE
INFORMATION HEREIN IS CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE HEREOF.
_______________
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in this Prospectus the
Company's: (i) Annual Report on Form 10-K for the fiscal year ended December
31, 1994, filed with the Securities and Exchange Commission (the "Commission")
on February 28, 1995; and (ii) all other reports filed pursuant to Section 13(a)
or 15(d) of the Exchange Act since December 31, 1994.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
after the date of this Prospectus and prior to the termination of the offering
of the Shares shall be deemed to be incorporated by reference herein and to be
part hereof from the date of filing of such documents. Any statement contained
in a document incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom this Prospectus is delivered, upon the written or oral request of such
person, a copy of any and all of the documents incorporated by reference in this
Prospectus, other than exhibits to such documents (unless such exhibits are
specifically incorporated by reference into the documents that this Prospectus
incorporates). Written or oral requests for such copies should be directed to
Mr. Charles W. Sprague, Secretary, FIserv, Inc., 255 FIserv Drive, Brookfield,
Wisconsin 53045, telephone (414) 879-5000.
The Company's headquarters are located at 255 FIserv Drive, Brookfield,
Wisconsin 53045, telephone (414) 879-5000. FIserv was incorporated as a
Delaware corporation in 1984, and reincorporated as a Wisconsin corporation in
1992. The terms "FIserv" and the "Company" as used herein mean FIserv, Inc.
and, unless the context otherwise requires, its consolidated subsidiaries.
<PAGE>
THE COMPANY
FIserv is a leading independent provider of financial data processing
systems and related information management services and products to banks,
credit unions, mortgage banks, savings institutions and other financial
intermediaries. These services and products are based primarily on proprietary
software developed by FIserv and maintained on computers located at data
processing centers in 66 cities. FIserv believes that it is the largest
processor of accounts for the nation's savings institutions and ranks among the
leaders in account processing for banks and credit unions. FIserv maintains
full-service account and transaction processing systems for approximately 2,500
financial institutions with over 42 million service bureau accounts. FIserv
delivers this account and transaction processing in all four of the traditional
delivery modes: service bureau; facilities management; resource management; and
in-house software. FIserv also provides electronic banking services, which
include Automated Teller Machine ("ATM")/Electronic Funds Transfer ("EFT")
services to financial institutions, driving and switching over 4,000 ATMs and
processing approximately 150 million ATM transactions annually, and check and
share draft remittance and back-office processing to financial institutions,
handling approximately 2.45 billion items per year through its 34 regional item
processing centers. In addition, FIserv provides trust administration services
for IRAs and other retirement plans, and furnishes microcomputer software to
financial institutions for asset/liability management. The total client base
served by FIserv includes more than 5,000 financial institutions. FIserv
believes that its focus on customer service and the contractual nature of its
business, combined with its historical renewal experience, provide a high level
of recurring revenues.
Since FIserv's formation in 1984, it has expanded its operations through
over 50 acquisitions and internally through the growth of existing clients.
From 1988 to 1994, FIserv's revenues increased from $125 million to $563.6
million, its operating income increased from $15.5 million to $69.2 million and
its net income grew from $9.2 million to $37.66 million. During this period,
net income per common and common equivalent share increased from $.33 to $.95.
On April 6, 1995, FIserv entered into a Stock Purchase Agreement to purchase
Information Technology, Inc. ("ITI") for approximately $373,000,000, two-thirds
in cash and one-third in FIserv Common Stock. ITI is wholly-owned by the
Selling Stockholders. The acquisition is subject to several conditions
precedent, including receipt of government approvals, and is expected to close
by the end of May.
USE OF PROCEEDS
All proceeds from the sale of the Shares to be sold pursuant to this
Prospectus will be for the account of the Selling Stockholders. As a
consequence, the Company will not receive any proceeds from the sale of the
Shares offered by the Selling Stockholders.
DIVIDEND POLICY
The Company has not paid cash dividends on its Common Stock. The Company
intends to retain earnings for use in its business and, therefore, does not
anticipate paying any cash dividends in the foreseeable future. The Company's
existing long-term debt instruments contain provisions limiting the amount of
cash dividends the Company can pay.
<PAGE>
SELLING STOCKHOLDERS
The following table sets forth information with respect to the number of
shares of Common Stock beneficially owned by each of the Selling Stockholders.
Number of Number of Percent of
Shares Number of Shares Shares
Beneficially Shares Beneficially Outstanding
Owned Prior to Registered Owned After After
Selling Stockholder Offering (1) Herein Offering Offering (2)
- ------------------- --------------- ---------- ------------ ------------
Donald F. Dillon 2,660,479 532,100 2,128,379 4.8%
Dale M. Jensen 1,773,575 443,400 1,330,175 3.0
Patrick F. Kerrigan 233,396 58,400 174,996 .4
1 Information as of May, 1995.
2 Assumes all shares registered herein are sold.
PLAN OF DISTRIBUTION
The Shares may be sold from time to time by the Selling Stockholders or by
pledgees, donees, transferees or other successors in interest. Such sales may
be made in any one or more transactions (which may involve block transactions)
in the over-the-counter market, on NASDAQ, and any exchange in which the Common
Stock may then be listed, or otherwise in negotiated transactions or a
combination of such methods of sale, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at negotiated
prices. The Selling Stockholders may effect such transactions by selling Shares
to or through broker-dealers, and such broker-dealers may sell the Shares as
agent or may purchase such Shares as principal and resell them for their own
account pursuant to this prospectus. Such broker-dealers may receive
compensation in the form of underwriting discounts, concessions or commissions
from the Selling Stockholders and/or purchasers of Shares from whom they may act
as agent (which compensation may be in excess of customary commissions).
The Company has informed the Selling Stockholders that the anti-
manipulative rules under the Securities Exchange Act of 1934 (Rules 10b-6 and
10b-7) may apply to their sales of Shares in the market. Also, the Company has
informed the Selling Stockholders of the need for delivery of copies of the
Prospectus in connection with any sale of securities registered hereunder in
accordance with applicable prospectus delivery requirements.
In connection with such sales, the Selling Stockholders and any
participating brokers and dealers may be deemed to be "underwriters" as defined
in the Securities Act. In addition, any of the Shares that qualify for sale
pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to this
Prospectus.
In order to comply with certain state securities, laws, if applicable, the
Common Stock will not be sold in a particular state unless such securities have
been registered or qualified for sale in such state or an exemption from
registration or qualification is available and complied with.
<PAGE>
LEGAL MATTERS
The validity of the issuance of the shares of the Common Stock offered
hereby will be passed upon for the Company by Charles W. Sprague, Executive Vice
President, General Counsel and Secretary of the Company. Mr. Sprague
beneficially owns 9,375 shares of FIserv Common Stock, which number includes
vested but unexercised stock options.
EXPERTS
The financial statements incorporated in this prospectus by reference from
the Company's Annual Report on Form 10-K for the year ended December 31, 1994
have been audited by Deloitte & Touche LLP, independent auditors, as stated in
their report, which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Exchange
Act and in accordance therewith files reports, proxy statements and other
information with the Commission. This Prospectus does not contain all
information set forth in the Registration Statement and the exhibits thereto
which the Company has filed with the Commission under the Securities Act of
1933, as amended (the "Act"), and to which reference is hereby made. Such
reports, proxy statements and other information filed by the Company with the
Commission can be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Room 1024, Washing ton,
D.C. 20549; Seven World Trade Center, 13th Floor, New York, New York 10048; and
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material can be obtained at prescribed rates
upon request from the Public Reference Section of the Commission at Room 1024 at
450 Fifth Street, N.W., Washington, D.C. 20549. The Company's registration
statements, proxy statements and other information may also be inspected at the
offices of the National Association of Securities Dealers, Inc., 1735 K Street,
N.W., Washington, D.C. 20006.
This Prospectus constitutes a part of a Registration Statement on Form S-3
(together with all amendments thereto, the "Registration Statement") filed by
the Company with the Commission under the Act. This Prospectus does not contain
all of the information included in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. Reference is made to such Registration Statement and to the
Exhibits relating thereto for further information with respect to the Company
and the Common Stock offered hereby.
No person is authorized to give any information or to make any
representation, other than those contained in this Prospectus, and any
information or representations not contained in this Prospectus must not be
relied upon as having been authorized. This Prospectus does not constitute an
offer to sell or solicitation of an offer to buy any securities other than the
registered securities to which it relates. This Prospectus does not constitute
an offer to sell or a solicitation of an offer to buy such securities under any
circumstances where such offer of solicitation is unlawful. Neither the
delivery of this Prospectus nor any sales made hereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs of the Company since the date hereof or that the information contained
herein is correct as of any time subsequent to its date.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses in connection with
the sale and distribution of the securities being registered, other than
underwriting discounts and commissions. All amounts shown are estimates except
the Securities and Exchange Commission registration fee, the NASD filing fee and
the NASDAQ listing fee.
Item Amount
---- ------
SEC registration fee............... $ 9,724
NASD filing fee.................... 3,320
NASDAQ listing fee................. 17,500
Blue Sky fees and expenses......... 10,000
Legal fees and expenses............ 15,000
Accounting fees and expenses....... 20,000
Miscellaneous...................... 4,456
Total......................... $80,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
In general, the Wisconsin Business Corporation Law provides that a
corporation shall indemnify directors and officers for all reasonable expenses
incurred in connection with the successful defense of actions arising in
connection with their service as directors and officers of the corporation. In
other cases, the Wisconsin statute provides that the corporation shall indemnify
a director or officer against liability unless the director or officer breached
or failed to perform a duty owed to the corporation and such breach or failure
meets certain specified criteria constituting, in general, some act of
misconduct. In addition, the corporation may reimburse a director or officer
for his expenses in defending against actions as they are incurred upon the
director's or officer's written request accompanied by a written affirmation of
his good faith belief that he has not breached or failed to perform his duties
to the corporation and a written undertaking to repay amounts advanced if it is
ultimately determined that indemnification is not required under the Wisconsin
Business Corporation Law. A court of law may order that the corporation provide
indemnification to a director or officer if it finds that the director or
officer is entitled thereto under the applicable statutory provision or is
fairly and reasonably entitled thereto in view of all the relevant
circumstances, whether or not such indemnification is required under the
applicable statutory provision.
<PAGE>
The Wisconsin Business Corporation Law specifies various procedures
pursuant to which a director or officer may establish his right to
indemnification.
Provided that it is not determined by or on behalf of the corporation that
the director or officer breached or failed to perform a duty owed to the
corporation and such breach or failure meets certain specified criteria
constituting, in general, some act of misconduct, a Wisconsin corporation may
provide additional rights to indemnification under its articles of incorporation
or by-laws, by written agreement, by resolution of its board of directors or by
a vote of the holders of a majority of its outstanding shares.
The Registrant's By-laws provide for indemnification and advancement of
expenses of directors and officers to the fullest extent provided by the
Wisconsin Business Corporation Law. This provision is not exclusive of any
other rights to indemnification or the advancement of expenses to which a
director or officer may be entitled under any written agreement, resolution of
directors, vote of stockholders, by law or otherwise.
ITEM 16. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
2.1 Stock Purchase Agreement, dated as of April 6, 1995, by and between FIserv,
Inc. and Information Technology, Inc. (A copy of the disclosure schedule is
not being filed, but will be provided to the Commission upon its request,
pursuant to Item 601(b) (2) of Regulation S-K.)
3.1 Articles of Incorporation, as amended (filed as Exhibit 3.1 to the
Company's Registration Statement on Form S-4, File No. 33-62870, and
incorporated herein by reference).
3.2 By-laws, (filed as Exhibit 3.2 to the Company's Registration Statement on
Form S-4, File No. 33-62870, and incorporated herein by reference).
4.1 Credit Agreement dated as of September 30, 1994, by and among FIserv, Inc.,
the Lenders Party Hereto, First Bank National Association, as Co-Agent and
The Bank of New York, as Agent. (Not being filed herewith, but will be
provided to the Commission upon its request, pursuant to Item 601(b) (4)
(iii) (A) of Regulation S-K.)
4.2 Note Purchase Agreement dated as of March 15, 1991, as amended, among
FIserv, Inc., Aid Association for Lutherans, Northwestern National Life
Insurance Company, Northern Life Insurance Company and The North Atlantic
Life Insurance Company of America. (Not being filed herewith, but will be
provided to the Commission upon its request, pursuant to Item 601(b) (4)
(iii) (A) of Regulation S-K.)
4.3 Note Purchase Agreement dated as of April 30, 1990, as amended, among
FIserv, Inc. and Teachers Insurance and Annuity Association of America. (Not
being filed herewith, but will be provided to the Commission upon its
request, pursuant to Item 601(b) (4) (iii) (A) of Regulation S-K.)
5.1 Opinion of Charles W. Sprague.
<PAGE>
23.1 Manually signed Consent of Independent Auditors.
23.2 Consent of Charles W. Sprague (included in Exhibit 5.1 hereto).
24. Powers of Attorney.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes to include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
information statement.
The undersigned registrant hereby undertakes to remove from registration by
means of a post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of deter-
mining any liability under the Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act), that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
<PAGE>
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling per sons of the Registrant
pursuant to the provisions described in Item 15 above, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The undersigned Registrant hereby further undertakes that:
(1) For purposes of determining any liability under the Act, the informa-
tion omitted from the form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a form of prospectus
filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under
the Act shall be deemed to be part of this registration statement as of the
time it was declared effective.
(2) For the purpose of determining any liability under the Act, each
post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Brookfield, State of Wisconsin, on the 18th day of
April 1995.
FISERV, INC.
By K. R. JENSEN
--------------------------
Kenneth R. Jensen,
Senior Executive Vice President
and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
* Chairman of the Board and Director April 18, 1995
- --------------------------
(George D. Dalton) (Principal Executive Officer)
* President and Director April 18, 1995
- --------------------------
(Leslie M. Muma)
* Senior Executive Vice President, April 18, 1995
- --------------------------
(Kenneth R. Jensen) Treasurer and Director (Principal
Financial and Accounting Officer)
* Director April 18, 1995
- --------------------------
(Bruce K. Anderson)
* Director April 18, 1995
- --------------------------
(Gerald J. Levy)
* Director April 18, 1995
- --------------------------
(L. William Seidman)
* Director April 18, 1995
- --------------------------
(Thekla R. Shackelford)
* Director April 18, 1995
- --------------------------
(Roland D. Sullivan)
*By: K. R. JENSEN
- --------------------------
(Kenneth R. Jensen, individually and as
attorney-in-fact for the persons indicated)
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION PAGE NO.
2.1 Stock Purchase Agreement, dated as of April 6, 1995, by and
between FIserv, Inc. and Information Technology, Inc. (A
copy of the disclosure schedule is not being filed, but will
be provided to the Commission upon its request, pursuant to
Item 601(b) (2) of Regulation S-K.) <EX-2.1>
3.1 Articles of Incorporation, as amended (filed as Exhibit 3.1
to the Company's Registration Statement on Form S-4, File
No. 33-62870, and incorporated herein by reference). *
3.2 By-laws, (filed as Exhibit 3.2 to the Company's Registration
Statement on Form S-4, File No. 33-62870, and incorporated
herein by reference). *
4.1 Credit Agreement dated as of September 30, 1994, by and
among FIserv, Inc., the Lenders Party Hereto, First Bank
National Association, as Co-Agent and The Bank of New York,
as Agent. (Not being filed herewith, but will be provided
to the Commission upon its request, pursuant to Item 601(b)
(4) (iii) (A) of Regulation S-K.) *
4.2 Note Purchase Agreement dated as of March 15, 1991, as
amended, among FIserv, Inc., Aid Association for Lutherans,
Northwestern National Life Insurance Company, Northern Life
Insurance Company and The North Atlantic Life Insurance
Company of America. (Not being filed herewith, but will be
provided to the Commission upon its request, pursuant to
Item 601(b) (4) (iii) (A) of Regulation S-K.) *
4.3 Note Purchase Agreement dated as of April 30, 1990, as
amended, among FIserv, Inc. and Teachers Insurance and
Annuity Association of America. (Not being filed herewith,
but will be provided to the Commission upon its request,
pursuant to Item 601(b) (4) (iii) (A) of Regulation S-K.) *
5.1 Opinion of Charles W. Sprague. <EX-5.1>
23.1 Manually signed Consent of Independent Auditors. <EX-23.1>
23.2 Consent of Charles W. Sprague (included in Exhibit 5.1 hereto). <EX-5.1>
24. Powers of Attorney. <EX-24>
* Not being filed herewith.
<PAGE>
STOCK PURCHASE AGREEMENT
Among
FISERV, INC.,
THE STOCKHOLDERS NAMED IN ANNEX I HERETO
and
INFORMATION TECHNOLOGY, INC.
Dated as of April 6, 1995
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I PURCHASE OF SHARES, PURCHASE PRICE,
CLOSING, ETC. . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01 Purchase of Shares . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02 Purchase Price . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.03 Closing . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.04 Payments to Sellers on the Closing Date . . . . . . . . 3
SECTION 1.05 Allocation Among Sellers . . . . . . . . . . . . . . . . 3
SECTION 1.06 No Fractional Shares . . . . . . . . . . . . . . . . . . 3
SECTION 1.07 Purchase Price Adjustment . . . . . . . . . . . . . . . 3
ARTICLE II REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . 4
SECTION 2.01 Representations and Warranties of the Principal
Stockholders with Respect to the Company . . . . . . . . 4
SECTION 2.02 Representations and Warranties by Sellers. . . . . . . . 16
SECTION 2.03 Representations and Warranties by FIserv . . . . . . . . 18
ARTICLE III ADDITIONAL COVENANTS AND AGREEMENTS . . . . . . . . . . . . . . 21
SECTION 3.01 Conduct of Business. . . . . . . . . . . . . . . . . . . 21
SECTION 3.02 Access to Information by FIserv. . . . . . . . . . . . . 21
SECTION 3.03 Confidentiality. . . . . . . . . . . . . . . . . . . . . 22
SECTION 3.04 Non-Assignable Licenses, Leases and Contracts. . . . . . 23
SECTION 3.05 Non-Competition. . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.06 Tax Election . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.07 Registration Statement . . . . . . . . . . . . . . . . . 25
SECTION 3.08 HSR Act Filings. . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.09 Exchange Act Filings . . . . . . . . . . . . . . . . . . 25
ARTICLE IV CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 4.01 Conditions Precedent to the Obligations
of FIserv. . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 4.02 Conditions Precedent to the Obligations
of Sellers . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE V SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION 29
SECTION 5.01 Survival . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.02 Indemnification for Taxes. . . . . . . . . . . . . . . . 30
SECTION 5.03 General Indemnity. . . . . . . . . . . . . . . . . . . . 31
SECTION 5.04 Third Party Claims . . . . . . . . . . . . . . . . . . . 32
SECTION 5.05 Limitation on Indemnities. . . . . . . . . . . . . . . . 33
SECTION 5.06 Securities Act Indemnification . . . . . . . . . . . . . 34
ARTICLE VI FURTHER ASSURANCES . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 6.01 Further Assurances . . . . . . . . . . . . . . . . . . . 37
SECTION 6.02 Books and Records. . . . . . . . . . . . . . . . . . . . 37
SECTION 6.03 Preparation of Income Tax Returns and
Payment of Taxes . . . . . . . . . . . . . . . . . . . . 38
ARTICLE VII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 7.01 Termination. . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 7.02 Effect of Termination. . . . . . . . . . . . . . . . . . 39
SECTION 7.03 Expenses, etc. . . . . . . . . . . . . . . . . . . . . . 39
SECTION 7.04 Execution in Counterparts. . . . . . . . . . . . . . . . 39
SECTION 7.05 Notices. . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 7.06 Waivers. . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.07 Amendments, Supplements, etc. . . . . . . . . . . . . . 42
SECTION 7.08 Entire Agreement . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.09 Applicable Law . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.10 Binding Effect, Benefits . . . . . . . . . . . . . . . . 42
SECTION 7.11 Assignability. . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.12 Disclosure Schedule. . . . . . . . . . . . . . . . . . . 43
SECTION 7.13 Public Announcements . . . . . . . . . . . . . . . . . . 43
SECTION 7.14 Invalid Provisions . . . . . . . . . . . . . . . . . . . 43
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
<PAGE>
INDEX TO EXHIBITS
Exhibit Description
A Form of Registration Rights Agreement
B Form of Opinion for Sellers
C Required Consents
D Form of Opinion for FIserv
<PAGE>
STOCK PURCHASE AGREEMENT dated as of April 6, 1995 among FISERV, INC.,
a Wisconsin corporation ("FIserv"), THE STOCKHOLDERS NAMED IN ANNEX I HERETO
(individually, a "Seller", and collectively, the "Sellers"), and INFORMATION
TECHNOLOGY, INC., a Nebraska corporation (the "Company").
WHEREAS, the Company is engaged in the business of developing,
licensing and maintenance of computer software used by financial institutions
and the sale of related computer equipment; and
WHEREAS, Sellers own all the issued and outstanding shares of capital
stock of the Company, consisting of 20,000 shares of Common Stock, $.50 par
value ("Common Stock"), as set forth in Annex I hereto; and
WHEREAS, Sellers desire to sell to FIserv, and FIserv wishes to
acquire from Sellers, all the issued and outstanding shares of Common Stock of
the Company;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties agree as follows:
ARTICLE I
PURCHASE OF SHARES, PURCHASE PRICE, CLOSING, ETC.
SECTION 1.01 Purchase of Shares. Subject to the terms and conditions
hereof, Sellers hereby agree to sell to FIserv, and FIserv agrees to buy from
Sellers, an aggregate 20,000 shares of Common Stock of the Company, being all
the issued and outstanding shares of Common Stock of the Company, there being no
other class of capital stock of the Company authorized or issued and
outstanding. On the Closing Date (as hereinafter defined) Sellers shall sell,
transfer and deliver to FIserv certificates evidencing an aggregate of 20,000
shares of Common Stock, being all the shares of Common Stock owned by Sellers,
with all requisite stock transfer tax stamps affixed, and the certificates to be
duly endorsed or accompanied by appropriate stock transfer powers duly executed
to FIserv. All the shares of Common Stock owned by Sellers are hereinafter
referred to as the "Shares".
SECTION 1.02 Purchase Price. (a) Subject to adjustment as provided
in Section 1.07 hereof, the aggregate purchase price for the Shares (the
"Purchase Price") shall be $373,104,261, payable as follows:
(i) the number of shares of the Common Stock, $.01 par value, of
FIserv ("FIserv Common Stock") determined by dividing $124,368,087
by the FIserv Share Value (as hereinafter defined); and
(ii) cash in the amount of $248,736,174.
(b) As used in this Agreement, the "FIserv Share Value" will be
determined as follows:
(i) if the Market Price of FIserv Common Stock on the Closing
Date is not more than $1.50 above, and not more than $1.50 below, the
Market Price of the FIserv Common Stock on the date hereof, then the
FIserv Share Value will be the Market Price of FIserv Common Stock on
the Closing Date;
(ii) if the Market Price of FIserv Common Stock on the Closing
Date is more than $1.50 above the Market Price of the FIserv Common
Stock on the date hereof, then the FIserv Share Value will be the
greater of (A) the sum of the Market Price of the FIserv Common Stock
as of the date hereof plus $1.50, or (B) the product obtained by
multiplying the Market Price of the FIserv Common Stock as of the
Closing Date by .925; and
(iii) if the Market Price of FIserv Common Stock on the Closing
Date is more than $1.50 below the Market Price of the FIserv Common
Stock on the date hereof, then the FIserv Share Value will be the
lesser of (A) the difference between the Market Price of the FIserv
Common Stock as of the date hereof and $1.50, or (B) the product
obtained by multiplying the Market Price of the FIserv Common Stock on
the Closing Date by 1.075.
(c) As used in this Agreement, the "Market Price" for FIserv Common
Stock shall be the average of the last sale price per share for FIserv Common
Stock on the National Market System as reported by NASDAQ (as reported in The
Wall Street Journal, or if not reported therein, another authoritative source)
on the last 15 trading days ending on the day prior to the date of this
Agreement or the Closing Date, as the case may be.
SECTION 1.03 Closing. The closing of the transactions contemplated
by this Agreement (the "Closing") shall take place at the offices of FIserv,
Inc., 255 FIserv Drive, Brookfield, WI 53045, on a date no sooner than 45 days
after the date hereof or immediately following the expiration of the requisite
waiting periods under the HSR Act and the effectiveness of the Registration
Statement to be filed pursuant to Section 3.07 hereof, if later, or at such
other place or at such other date as Sellers and FIserv may mutually agree (such
date and effective time of Clos ing is herein called the "Closing Date"); it
being understood and agreed, however, that for all purposes relating to Taxes
(as that term is hereinafter defined) the Closing shall be deemed effective as
of the close of business on the Closing Date.
SECTION 1.04 Payments to Sellers on the Closing Date. On the Closing
Date, in full consideration for the sale, conveyance, transfer and delivery to
FIserv of all the Shares, FIserv shall pay to Sellers (a) by wire transfer of
immediately available funds the cash portion of the Purchase Price, without
interest, and (b) by delivery of stock certificates evidencing the number of
shares of FIserv Common Stock determined in accordance with Section 1.02(a).
SECTION 1.05 Allocation Among Sellers. Those Sellers who are not
identified as a principal stockholder in Annex I hereto (those who are so
designated are referred to herein as the "Principal Stockholders") shall receive
their pro rata portion of the Purchase Price in cash only. The remaining cash
portion of the Purchase Price and all shares of the FIserv Common Stock received
shall be allocated (pro rata in accordance with the number of Shares owned)
among the Principal Stockholders.
SECTION 1.06 No Fractional Shares. No certificate or scrip
representing fractional shares of FIserv Common Stock shall be issued upon the
surrender for exchange of certificates, and no dividend, stock split or interest
shall relate to any such fractional shares. In lieu of any fractional share of
FIserv Common Stock being issued, such fractional share will be rounded down to
the nearest whole share of FIserv Common Stock and cash shall be paid to the
Sellers in respect of such fractional share based on the FIserv Share Value.
SECTION 1.07 Purchase Price Adjustment. Promptly following the
Closing and, in any event not later than 30 days thereafter, the Company shall
prepare a statement of the assets and liabilities of the Company at and as of
the Closing Date, such statement to be prepared on the same basis as the Company
Financial Statements, with allocations to be made on the basis of the number of
days in a month if the Closing shall not occur at a month end. If the net worth
(assets minus liabilities) of the Company as set forth in such statement shall
exceed the sum of $5,000,000, the amount of such difference shall be an addition
to the Purchase Price and FIserv shall promptly pay the amount of such addition
to the Principal Stockholders. If the net worth of the Company as set forth in
such statement shall be less than $5,000,000, the Purchase Price shall be
reduced by the amount of such difference and the Principal Stockholders shall
promptly repay the amount of such reduction to FIserv. Any addition to or
reduction of the Purchase Price shall be paid in cash and shall be treated as
allocable, pro rata, solely among the Principal Stockholders and shall not
affect in any manner the amount received by the other Sellers for their Shares.
In the event that the parties shall disagree with respect to the net worth of
the Company following preparation of the statement referred to above by the
Company, then Coopers & Lybrand L.L.P. shall conduct an audit of the assets and
liabilities of the Company at and as of the Closing Date, such audit to be
conducted on the same basis as the Company Financial Statements, and the
foregoing provisions shall apply with respect to the results of such audit.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.01 Representations and Warranties of Principal Stockholders
with Respect to the Company. Except as otherwise set forth in the Disclosure
Schedule (the "Disclosure Schedule"), the Principal Stockholders, jointly and
severally, represent and warrant to, and agree with, FIserv as follows:
a) Organization and Qualification, etc. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Nebraska, has corporate power and authority to own all of its
properties and assets and to carry on its business as it is now being
conducted, and is duly qualified to do business and is in good standing in
those jurisdictions set forth in the Disclosure Schedule. To the knowledge
of the Principal Stockholders the Company has not failed to qualify to do
business in any jurisdiction where the Company is required to qualify and
where the failure to so qualify would have a Material Adverse Effect (as
hereinafter defined). The copies of the Compa ny's Articles of
Incorporation and By-Laws, as amended to date, which have been delivered to
FIserv are complete and correct, and such instruments, as so amended, are
in full force and effect at the date hereof.
"Material Adverse Effect" for purposes of this Agreement when used
with respect to any party means any change in, or effect on, or, if stated
to be in the aggregate, series of changes in, or effects on, the business
of such party as currently conducted by such party that results in the
incurrence of damages or liability equal to or in excess of $100,000.
(b) Capital Stock. The authorized capital stock of the Company
consists of 20,000 shares of Company Common Stock of which as of the date
hereof 20,000 shares of Company Common Stock are validly issued and out-
standing, fully paid and nonassessable, all of which are held of record by
the Sellers and no shares of Company Common Stock are in the treasury of
the Company. As of the date hereof the Company has no commitments to issue
or sell any shares of its capital stock or any securities or obligations
convertible into or exchangeable for, or giving any person any right to
subscribe for or acquire from the Company, any shares of its capital stock
and no securities or obligations evidencing any such rights are outstand-
ing. The Company hereby waives the provisions of Article VIII of the
Articles of Incorporation of the Company.
(c) Subsidiaries. The Company does not own of record or beneficial-
ly, directly or indirectly, (i) any shares of outstanding capital stock or
securities convertible into capital stock of any other corporation or
(ii) any participating interest in any partnership, joint venture or other
non-corporate business enterprise.
(d) Authority Relative to Agreement. The Company has the corporate
power and authority to execute and deliver this Agreement and to consummate
the transactions contem plated on the part of the Company hereby. The
execution and delivery by the Company of this Agreement and the consumma-
tion by the Company of the transactions contemplated hereby have been duly
authorized by its Board of Directors. No other corporate proceedings on
the part of the Company are necessary to authorize the execution and deliv-
ery of this Agreement by the Company or the consummation by the Company of
the transactions contem plated hereby. This Agree ment has been duly
executed and delivered by the Company and, assuming the due authori zation,
execution and delivery of this Agreement by the other parties hereto, is a
valid and binding agreement of the Company, enforceable against the Company
in accordance with its terms, except as such enforcement is subject to the
effect of (i) any applicable bankruptcy, insolvency, reorganization or
similar laws relating to or affecting creditors' rights generally and (ii)
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, and other similar
doctrines affecting the enforceability of agreements generally (regardless
of whether considered in a proceeding in equity or at law).
(e) Non-Contravention. The execution and delivery of this Agreement
by the Company do not and the consummation by the Company of the
transactions contemplated hereby will not (i) violate any provision of the
Articles of Incorporation or By-Laws of the Company, (ii) to the knowledge
of the Principal Stockholders, (a) violate, or result, with the giving of
notice or the lapse of time or both, in a violation of, any provision of,
or result in the acceleration of or entitle any party to accelerate
(whether after the giving of notice or lapse of time or both) any obliga-
tion under, or result in the creation or imposition of any material lien,
charge, pledge, security interest or other encumbrance upon any of the
property of the Company pursuant to any provision of, any material
mortgage, lien, lease, agreement, license, instrument, order, arbitration
award, judgment or decree to which the Company is a party or by which any
of its assets is bound, (b) violate or conflict with any other material
restriction of any kind or character to which the Company is subject or by
which any of its assets may be bound, or (c) constitute an event permitting
termination of any such material mortgage, lien, lease, agreement, license
or instrument to which the Company is a party or (iii) to the knowledge of
the Principal Stockholders, violate any law, ordinance or regulation to
which the Company is subject.
(f) Government Approvals. No consent, authorization, order or
approval of, or filing or registration with, any governmental commission,
board or other regulatory body is required for the execution and delivery
of this Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby, except (i) for filings with the Federal
Trade Commission (the "Commission") and the Antitrust Division of the
Department of Justice (the "Antitrust Division") under the Hart-Scott-
Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and
the termination of the requisite waiting period thereunder, (ii) as may be
necessary as a result of any facts or circumstances relating solely to
FIserv or (iii) where the failure to obtain such consents, authorizations
or approvals or to make such filings or registrations would not prevent the
consummation of the transactions contemplated hereby.
(g) Financial Statements. The Company has previously furnished
FIserv with true and complete copies of the audited balance sheets of the
Company as of December 31, 1993 and 1994, and the related audited state-
ments of income, retained earnings and cash flows for the years then ended,
certified by Coopers & Lybrand L.L.P., the independent accountants of the
Company (the "Company Financial Statements"). The Company Financial State-
ments have been prepared in conformity with generally accepted accounting
principles ("GAAP") consistently applied and present fairly the finan cial
position and results of operations of the Company as of and for the
respective periods then ended.
(h) Absence of Certain Changes or Events. Since December 31, 1994,
except as disclosed in the Company Financial Statements, the Company has
not:
(i) incurred any obligation or liability (fixed or con tingent),
except normal trade or business obligations incurred in the ordinary
course of business;
(ii) discharged or satisfied any lien, security interest or
encumbrance or paid any obligation or liability (fixed or contingent),
other than in the ordinary course of business;
(iii) mortgaged, pledged or subjected to any lien, secu rity
interest or other encumbrance any of its assets or properties, other
than Permitted Exceptions (as hereinafter defined);
(iv) transferred, leased or otherwise dis posed of any of its
assets or properties or acquired any assets or properties, except in
the ordinary course of business;
(v) canceled or compromised any debt or claim, except in the
ordinary course of business;
(vi) waived or released, under any contract, rights of the
Company having value to the Company, except in the ordinary course of
business;
(vii) transferred or granted any rights under any concessions,
leases, licenses, agreements, patents, inventions, trademarks, trade
names, service marks or copyrights or with respect to any know-how,
except in the ordinary course of business;
(viii) except in the ordinary course of business, made or
granted any wage or salary increase appli cable to any group or
classification of employees generally, paid any bonuses, entered into
any employment contract with any officer or employee or made any loan
to, or entered into any transaction of any other nature with, any
officer or employee of the Company;
(ix) entered into any transaction, contract or commitment,
except this Agreement and the transactions contemplated hereby, and
those entered into in the ordinary course of business;
(x) declared, paid or made any provision for payment of any
dividends or other distribution in respect of shares of Company Common
Stock, or acquired or made any provision for acquiring any shares of
Company Common Stock;
(xi) suffered any casualty loss or damage (whether or not such
loss or damage shall have been covered by insurance) which affects in
any material respect its ability to conduct its business; or
(xii) suffered any material adverse change in its operations or
condition (financial or other) or in its assets, properties or
business.
"Permitted Exceptions" shall mean (i) mechanic's, materialman's,
warehouseman's and carrier's liens and purchase money security interests
arising in the ordinary course of business; (ii) liens for Taxes (as
hereinafter defined) and assessments not yet payable; (iii) liens for
Taxes, assessments and charges and other claims, the validity of which the
Company is contesting in good faith; and (iv) imperfections of title,
liens, security interests, claims and other char ges and encumbrances the
existence of which would not have in the aggregate a Material Adverse
Effect.
(i) Title to Properties; Absence of Liens and Encumbrances, etc. The
Company has good and marketable title to all of the real, tangible,
personal and mixed properties and assets owned by it and used in its
business, free and clear of any liens, charges, pledges, security interests
or other encumbrances (other than Permitted Exceptions), except as re-
flected in the Company Financial Statements. The Company's intangible
properties and assets (excluding leasehold interests and other than any
intangible properties and assets described in Section 2.01(j) and 2.01(n),
which sections contain the Principal Stockholders' representations and
warranties with respect to such intangible properties and assets) are free
and clear of any liens, charges, pledges, security interests or other
encumbrances (other than Permitted Exceptions), except as reflected in the
Company Financial Statements.
(j) Software. The Disclosure Schedule contains a list or description
by type of all material operating and applications computer programs and
data bases ("Software") which the Company uses or has available for use and
plans to use, and such Software constitutes all the material Software which
is used in connection with or is necessary to operate the business of the
Company as currently conducted. Except as indicated in the Disclosure
Schedule, such Software is owned outright by the Company. As to any
Software which is listed in the Disclosure Schedule and is not owned by the
Company, to the knowledge of the Principal Stockholders, the Compa ny has
the right to use the same pursuant to valid leases or licenses there for,
and, to the knowledge of the Principal Stockholders, all such leases and
licenses are in full force and effect and there is no material default, nor
any event which with notice or the lapse of time or both, will become a
material default under any such lease or license by the Company or any
other parties thereto. To the knowledge of the Principal Stockholders,
none of the Software used by or available to the Company as aforesaid, and
no use thereof, infringes upon or violates any patent, copyright, trade
secret or other proprietary right of anyone else and the Company has re-
ceived no notice of any claim with respect to any such infringement or
violation. Upon consummation of the transactions contemplated hereby, (x)
the Company will continue to own all of the Software owned outright by the
Company prior to the Closing, free and clear of all claims, liens,
encumbrances, obligations and liabilities except those existing at Closing
and except for such claims, liens, encumbrances, obligations and
liabilities of the Company (i) applicable to Software licensed to third
parties or (ii) as may be disclosed in the Disclosure Schedule; and (y)
with respect to all agreements for the lease or license of Software which
require consents or other actions (which consents or other actions are
listed in the Disclosure Schedule) as a result of (or prior to) the
consummation of the transactions contemplated hereby in order for the
Company to continue to use and operate such Software after the Closing
Date, the Company will endeavor to obtain such consents or take such other
actions as required.
(k) List of Properties, Contracts and Other Data. The Disclosure
Schedule contains a list setting forth with respect to the Company as of
the date hereof the following:
(i) all real properties owned in fee simple by the Company;
(ii) all leases of real or personal property to which the
Company is a party, either as lessee or lessor with a brief
description of the property to which each such lease relates, except
such leases of personal property as require payment during their
remaining life aggregating less than $50,000;
(iii) (A) all patents, trademarks and trade names, trademark
and trade name registrations, servicemark registrations, copyrights
and copyright registrations, unexpired as of the date hereof, all
applications pending on said date for patents or for trademark, trade
name, service mark or copyright registrations, all other proprietary
rights owned or held by the Company and reasonably necessary to, or
used by the Company primarily in connection with, its business and
(B) all licenses granted by or to the Company and all other agreements
to which the Company is a party which relate, in whole or in part, to
any items of the categories mentioned in (A) above, other than any
such license or other agreement requiring payments during its
remaining life aggregating less than $50,000 or terminable by the
Company within one year without payment of a premium or penalty and
other than licenses of software executed by the Company with its
customers in the ordinary course of the Company's business;
(iv) all collective bargaining agreements, employment and
consulting agreements (other than consulting agreements terminable by
the Company within 60 days without payment of a premium or a penalty),
executive compensation plans, bonus plans, deferred compensation
agreements, employee pension plans or retirement plans, employee
profit sharing plans, employee stock purchase and stock option plans,
group life insurance, hospitalization insurance or other plans or
arrangements providing for benefits to employees of the Company; and
(v) all contracts and commitments (including, without
limitation, mortgages, indentures and loan agreements) to which the
Company is a party, or to which it or any of its assets or properties
are subject and which are not specifically referred to in (i), (ii),
(iii) or (iv) above; provided that there need not be listed in the
Disclosure Schedule (unless required pursuant to the preceding clauses
(i), (ii), (iii) or (iv) above) any contract or commitment incurred in
the ordinary course of business which requires payments to or by the
Company during its remaining life aggregating less than $50,000.
True and complete copies of all documents and descriptions complete in all
material respects of all oral agreements or commitments (if any) referred
to in (i) through (v) above (other than insurance plans which have been
summarized) have been provided or made available to FIserv or its counsel.
The Company has not been notified in writing of any claim that any contract
listed in the Disclosure Schedule for this subsection (k) is not valid and
enforceable in accordance with its terms for the periods stated therein, or
that there is under any such contract any existing default or event of
default or event which with notice or lapse of time or both would
constitute such a default, except for any such claim respecting any
contracts, the loss of which would not have in the aggregate a Material
Adverse Effect. A schedule of the current annual compensation of all em-
ployees of the Company (by position or by department) as of a recent date
has been submitted to FIserv.
(l) Litigation. There are no actions, suits or proceedings with
respect to the business of the Company pending against the Company of which
the Principal Stockholders are aware at law or in equity, or before or by
any federal, state, municipal, foreign or other governmental department,
commission, board, bureau, agency or instrumentality, nor, to the knowledge
of any Principal Stockholder, has the Company received any notice of any
such actions, suits or proceedings with re spect to the business of the
Company.
(m) Labor Controversies. Except as would not reasonably be expected
to have in the aggregate a Material Adverse Effect:
(i) there are no controversies known to any Principal
Stockholder between the Company and any employees or any unresolved
labor union grievances or unfair labor practice or labor arbitration
proceedings pending or, to the knowledge of the Principal
Stockholders, threatened, related to the Company and, to the knowledge
of the Principal Stockholders, there are not and during the last two
years prior to the date hereof there have not been any formal or
informal organizing efforts by a labor organization and/or a group of
Company employees; and
(ii) the Company has not received notice of any claim that it
has not complied with any laws relating to the employ ment of labor,
including any provisions thereof relating to wages, hours, collective
bargaining, the payment of social security and similar taxes, equal
employment opportunity, employment discrimination and em ployment
safety, or that it is liable for any arrears of wages or any Taxes or
penalties for failure to comply with any of the foregoing.
(n) Patent, Trademark, etc. Claims. No person has made or, to the
knowledge of the Principal Stockholders, threatened to make any claims that
the operation of the business of the Company is in violation or
infringement of any patent, patent license, trade name, trademark,
servicemark, brandmark, brand name, copyright, know-how or other
proprietary or trade rights of any third party; and no Principal
Stockholder knows of any non-frivolous basis for any such claims.
(o) Use of Real Property. The Company has not received any notice of
violation of any applicable zoning or building regulation, ordinance or
other law, order, regulation or requirement relating to the real property
owned or occupied by the Company or any notice of default under any lease,
contract, commitment, license or permit, relating to the use and opera tion
of the owned or leased real property listed in the Disclosure Schedule, in
either case which would have in the aggregate a Material Adverse Effect
and, to the knowledge of the Principal Stockholders, there is no such
violation or default which would have in the aggregate a Material Adverse
Effect. The Company has not received any notice that any plant or other
building which is owned or covered by a lease set forth in the Dis closure
Schedule hereto does not substantially conform with all applicable ordi-
nances, codes, regulations and requirements, and the Company has not re-
ceived notice that any law or regulation presently in effect or condition
precludes or restricts continuation of the present use of such properties
by the Company.
(p) Accounts Receivable. The accounts receivable reflected on the
balance sheet of the Company as of December 31, 1994 and all accounts
receivable arising between December 31, 1994 and the date hereof, arose
from bona fide transactions in the ordinary course of business; except as
contemplated by the relevant contract, the services involved have been
provided to the account obligor and to the knowledge of the Principal
Stockholders, no further services are required to be provided in order to
complete the sales and to entitle the Company or its assignees to collect
the accounts receivable in full. No such account has been assigned or
pledged to any other person, firm or corporation.
(q) Compliance with Law. The Company is not in default with respect
to any order of any court, governmental authority or arbitration board or
tribunal to which it is a party or, to the knowledge of the Principal
Stockholders, to which the Company is subject and which applies to its
business, and, to the knowledge of the Principal Stockholders, the Company
has not been notified that it is in violation of any laws, ordinances,
governmental rules or regulations to which it is subject or has failed to
obtain any licenses, permits, franchises or other governmental
authorizations necessary to the ownership of its assets and properties or
to the conduct of its business.
(r) Employee Benefits.
(i) The Disclosure Schedule sets forth each "employee benefit
plan" as defined under the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), which the Company maintains, contributes
to or in which any of the Company's employees participates on account
of employment by the Company (each a "Plan"). To the knowledge of
each Principal Stockholder, each Plan has complied and currently is in
compliance, both as to form and operation, in all material respects
with the applicable provisions of ERISA and the Internal Revenue Code
of 1986, as amended (the "Code").
(ii) The Company has never maintained, adopted or established,
contributed or been required to contribute to, or otherwise
participated or been required to participate in, (A) a "multiemployer
plan" (as defined in Section 3(37) of ERISA) or (B) an employee
benefit plan (as defined above) subject to Title IV of ERISA. No
amount is due as owing from the Company on account of a "multiemployer
plan" (as defined in Section 3(37) of ERISA) or on account of any
withdrawal therefrom.
(iii) The Company has not incurred any liability with respect to
a Plan including, without limitation, under ERISA (including, without
limitation, Title I or Title IV of ERISA thereof other than liability
for premiums due to the Pension Benefit Guaranty Corporation
("PBGC")), the Code or other applicable law, which has not been
satisfied in full, and no event has occurred, and, to the knowledge of
each Principal Stockholder, there exists no condition or set of cir-
cumstances which could result in the imposition of any liability with
respect to a Plan, including, without limitation, under ERISA
(including, without limitation, Title I or Title IV of ERISA), the
Code or other applicable law with respect to the Plan.
(iv) The Company has no outstanding commitments to provide or to
cause to be provided any severance or other post-employment benefit,
salary continuation, termination, disability, death, retire ment,
health or medical benefit or similar benefit to any person (including,
without limitation, any former or current employee) that has not been
reflected in the Company Financial Statements or is not included in
any plan disclosed in the Disclosure Schedule.
(s) Insurance. The Disclosure Schedule summarizes the amount and
kinds of insurance as to which the Company has insurance policies or
contracts relating the business or operations of the Company. All such
insurance policies and contracts are in full force and effect. No notice
of cancellation or termination of any such insurance policies or contracts
has been given to the Company by the carrier of any such policy.
(t) Bank Accounts. The Disclosure Schedule lists all bank, money
market, savings and similar accounts and safe deposit boxes of the Company
specifying the account numbers and the authorized signatories of persons
having access to them.
(u) Taxes.
(i) The Company has (A) duly and timely filed all Tax Returns
(as defined below) required to be filed for all periods ending on or
prior to the Closing Date, which Tax Returns are true, correct and
complete in all material respects, and (B) timely paid all Taxes (as
defined below) due and payable in respect of all periods up to and
including the Closing Date and has properly accrued all Taxes not yet
payable in respect of all periods up to and including the Closing
Date. Prior to the Closing Date, the Company shall provide FIserv
with a schedule with respect to any open Tax years which sets forth
each Taxing jurisdiction in which the Company has filed or is required
to file income or franchise Tax Returns and whether the Company has
filed or will file income or franchise Tax Returns with re spect to
each such jurisdiction and a copy of such Tax Returns as have been
requested by FIserv. The Company has timely and properly withheld or
collected, paid over and reported all Taxes required to be withheld or
collected by the Company on or before the date hereof.
(ii) (A) No Federal Taxing authority has asserted any
adjustment, and no State or local Taxing authority has asserted any
material adjustment, that could result in an additional Tax for which
the Company is or may be liable, (B) there is no pending audit,
examination, investigation, dispute, proceeding or claim
(collectively, "Proceeding") relating to any Tax for which the Company
is or may be liable and, to the knowledge of the Principal
Stockholders, no Taxing authority is contemplating such a Proceeding
and there is no reasonable basis for any such Proceeding, (C) no
statute of limitations with respect to any Tax for which the Company
is or may be liable has been waived or extended, except for the
federal protective refund claim filed for the taxable year ended
December 31, 1990, and (D) the Company is not a party to any Tax
sharing or Tax allocation agreement, arrangement or understanding.
(iii) The Company is not a party to any agreement, contract or
arrangement that would result, individually or in the aggregate, in
the payment of any amount that would not be deductible by reason of
Section 162, 280G or 404 of the Code. The Company is not a
"consenting corporation" within the meaning of Section 341(f) of the
Code. The Company does not have any "tax-exempt use property" within
the meaning of Section 168(h) of the Code. None of the assets of the
Company is required to be treated as being owned by any other person
pursuant to the "safe harbor" leasing provisions of Section 168(f)(8)
of the Internal Revenue Code of 1954, as in effect prior to the repeal
of said leasing provisions.
(iv) The Company elected to be treated as an S corporation for
federal income Tax purposes as of October 1, 1985 and such election is
effective for each year thereafter up to and including the Closing
Date. The Disclosure Schedule sets forth each other jurisdiction for
which the Company has an S election (or similar election) in effect,
including the jurisdiction, the date of the election, its effective
date, the date of any termination of such election and the cause of
such termination and whether the election is still in effect. Prior to
the Closing Date, neither the Company nor the Sellers shall take any
action or fail to take any action which could result in the
termination or revocation of any such election.
(v) For purposes of this Agreement, "Taxes" shall mean all
federal, state, local and foreign taxes, charges, fees, levies,
deficiencies or other assessments of whatever kind or nature
(including, without limitation, all net income, gross income, gross
receipts, sales, use, ad valorem, transfer, franchise, profits,
license, withholding, payroll, employment, excise, estimated,
severance, stamp, occupation, property, minimum, environmental,
windfall profits or other taxes, customs, duties, fees, assessments or
charges of any kind whatsoever), including any liability therefor as a
transferee under Section 6901 of the Code or any similar provision
under applicable law, as a result of Treasury Regulation Section
1.1502-6, in each case, any similar provision under applicable law, or
as a result of any Tax sharing or similar agreement, together with any
interest, penalties, additions to tax or additional amounts imposed by
any Taxing authority (domestic or foreign).
(vi) As used herein, "Tax Return" includes any return, declara-
tion, report, information return or statement, and any amendment
thereto, including without limitation any consolidated, combined or
unitary return or other document (including any related or support ing
information), filed or required to be filed with any federal, state,
local or foreign governmental entity or agency in connection with the
determination, assessment, collection or payment of Taxes or the
administration of any laws, regulations or administrative requirements
relating to Taxes.
(v) Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by the Company and
the Sellers directly with FIserv, without the intervention of any other
person on behalf of the Company or any Seller in such manner as to give
rise to any valid claim by any other person against the Company or any
Seller for a finder's fee, brokerage commissions or similar payment.
SECTION 2.02 Representations and Warranties of the Sellers.
Each Seller for himself only, represents and warrants to, and agrees with,
FIserv as follows, provided, however, that the representations, warranties and
agreements contained in subsections (d), (f) and (g) in this Section 2.02 are
made solely by the Principal Stockholders:
(a) Standing. Such Seller is an individual competent to own his
properties and assets and to carry on his affairs as they are now being
conducted.
(b) Authority Relative to Agreement. Such Seller has the power
and authority to execute and deliver this Agreement and, if executed by
such Seller, the Registration Rights Agreement substantially in the form of
Exhibit A hereto (the "Registration Rights Agreement") and to consummate
the transactions contemplated on the part of such Seller hereby and
thereby. No other legally required proceedings on the part of such Seller
are necessary to authorize the execution and delivery of this Agreement
and, if executed by such Seller, the Registration Rights Agreement by such
Seller or the consummation by such Seller of the transactions contemplated
hereby and thereby. This Agreement has been, and on the Closing Date the
Registration Rights Agreement, if executed by such Seller, will have been,
duly executed and delivered by such Seller and, assuming the due authoriza-
tion, execution and delivery of this Agreement and the Registration Rights
Agreement by FIserv, are valid and binding agreements of such Seller, en-
forceable against such Seller in accordance with their respective terms,
except as such enforcement is subject to the effect of (i) any applicable
bankruptcy, insolvency, reorganization or similar laws relating to or
affecting creditors' rights generally and (ii) general principles of
equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, and other similar doctrines
affecting the enforceability of agreements generally (regardless of whether
considered in a proceeding in equity or at law).
(c) Non-Contravention. The execution and delivery of this
Agreement and, if executed by such Seller, the Registration Rights
Agreement by such Seller do not and the consummation by such Seller of the
transactions contemplated hereby and thereby will not to the knowledge of
such Seller (i) violate, or result, with the giving of notice or the lapse
of time or both, in a violation of, any provision of, or result in the
acceleration of or entitle any party to accelerate (whether after the
giving of notice or lapse of time or both) any obligation under any
mortgage, lien, lease, agreement, license, instrument, law, ordinance,
regulation, order, arbitration award, judgment or decree to which such
Seller is a party or by which any of his assets are bound and do not and
will not violate or conflict with any other restriction of any kind or
character to which such Seller is subject or by which any of his assets may
be bound, and the same does not and will not constitute an event permitting
termination of any mortgage, lien, lease, agreement, license or instrument
to which such Seller is a party, or (ii) violate any law, ordinance or
regulation to which such Seller is subject, except, in each case or cases,
for any such violation, acceler ation, creation, imposition, conflict or
termination which would not prevent the consummation of the transactions
contemplated hereby and thereby.
(d) Government Approvals. No consent, authorization, order or
approval of, or filing or registration with, any governmental commission,
board or other regulatory body is required for or in connection with the
execution and delivery of this Agreement and the Registration Rights
Agreement and the consummation by each Seller of the transactions
contemplated hereby and thereby, except (i) for filings with the Commission
and the Antitrust Agreement under the HSR Act, and the termination of the
requisite waiting period thereunder, (ii) where the failure to obtain such
consents, authorizations or approvals or to make such filings or
registrations would not prevent the consummation of the transactions
contemplated hereby or (iii) as may be necessary as a result of any facts
or circumstances relating solely to FIserv.
(e) Transfer of Shares. Such Seller is and on the Closing Date
will be the lawful owner of the shares of Company Common Stock set forth
opposite his name on Annex I hereto, free and clear of all liens, charges,
encumbrances and claims whatsoever as may have been created by or relate to
such Seller other than such restrictions as generally arise under
applicable securities laws and the sale, transfer and delivery of said
Shares to FIserv pursuant to the provisions of this Agreement will transfer
to FIserv valid title thereto, free and clear of all liens, charges,
encumbrances and claims whatsoever as may have been created by or relate to
Seller. Such Seller hereby waives the provisions of Article VIII of the
Articles of Incorporation of the Company.
(f) Investment Representation. Such Seller is acquiring the
shares of FIserv Common Stock, if any, that he is acquiring hereunder for
his own account for the purpose of investment and not with a view to or for
sale in connection with any distribution thereof. Such Seller understands
that the shares of FIserv Common Stock that he is acquiring hereunder have
not been registered under the Securities Act by reason of their issuance in
a transaction exempt from the registration requirements of the Securities
Act pursuant to Section 4(2) thereof. Such Seller acknowledges and agrees
that he (i) has made his own inquiry and investigation into the material
information relating to a proposed investment in FIserv and (ii) has been
furnished with or given access to such information as he requested about
FIserv.
(g) Registration Statement. None of the information supplied by
the Company or the Sellers in writing for inclusion in the "shelf"
registration statement on Form S-3 (the "Registration Statement") of FIserv
under the Securities Act of 1933 (the "Securities Act") with respect to the
FIserv Common Stock to be registered on behalf of the Principal
Stockholders hereunder or for inclusion in any other filing to be made by
FIserv with the Securities and Exchange Commission (the "SEC") in
connection herewith will at the time the Registration Statement becomes
effective or at the time any amendments or supplements become effective or
are filed with the SEC contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances
under which they are made, not misleading.
SECTION 2.03 Representations and Warranties of FIserv. FIserv repre-
sents and warrants to, and agrees with, the Company and each Seller as follows:
(a) Organization and Qualification, etc. FIserv is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Wisconsin and has corporate power and authority to own its proper-
ties and assets and to carry on its business as it is now being conducted.
FIserv is duly qualified to do business and is in good standing in each
jurisdiction where the failure to be so qualified would have a Material
Adverse Effect.
(b) Authority Relative to Agreement. FIserv has the corporate power
and authority to execute and deliver this Agreement and the Registration
Rights Agreement and to consummate the transactions contem plated on its
part hereby and thereby. The execution and delivery by FIserv of this
Agreement and the Registration Rights Agreement and the consummation by
FIserv of the transactions contemplated on its part hereby and thereby have
been duly authorized by its Board of Directors. No other corpo rate
proceedings on the part of FIserv are necessary to authorize the execu tion
and delivery of this Agreement and the Registration Rights Agreement by
FIserv or the consummation by FIserv of the transactions contemplated here-
by and thereby. This Agreement has been, and on the Closing Date the
Registration Rights Agreement will have been, duly executed and delivered
by FIserv and, assuming due authorization, execution and deliv ery of this
Agreement and the Registration Rights Agreement by the other parties
hereto, are its valid and binding agreements, enforceable against FIserv in
accordance with their respective terms, except as such enforcement is
subject to the effect of (i) any applicable bankruptcy, insolvency,
reorganization or similar laws relating to or affecting creditors' rights
generally and (ii) general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing, and other similar doctrines affecting the enforceability of
agreements generally (regardless of whether considered in a proceeding in
equity or at law).
(c) Non-Contravention. The execution and delivery of this Agreement
and the Registration Rights Agreement by FIserv do not and the consummation
by FIserv of the transactions contemplated hereby and thereby will not
(i) violate any provision of the Articles of Incorporation or By-Laws of
FIserv, or (ii) to the knowledge of FIserv, (a) vio late, or result, with
the giving of notice or the lapse of time or both, in a violation of, any
provision of, or result in the acceleration of or entitle any party to
accelerate (whether after the giving of notice or lapse of time or both)
any obligation under, or result in the cre ation or imposition of any
material lien, charge, pledge, security interest or other encumbrance upon
any of the property of FIserv pursuant to any provi sion of, any material
mortgage, lien, lease, agreement, license, instru ment, order, arbitration
award, judgment or decree to which FIserv is a party or by which any of its
assets are bound, (b) violate or conflict with any other material restric-
tion of any kind or character to which FIserv is subject or by which any of
its assets may be bound, or (c) constitute an event permitting termination
of any such material mortgage, lien, lease, agreement, license or
instrument to which FIserv is a party or (iii) to the knowledge of FIserv,
violate in any material respect any law, ordinance or regulation to which
FIserv is subject, except, in each case or cases, for any such violation,
acceleration, creation, imposition, conflict or termination which would not
prevent the consummation of the transactions contemplated hereby by FIserv.
(d) Government Approvals. No consent, authorization, order or
approval of, or filing or registration with, any governmental commission,
board or other regulatory body is required for or in connection with the
execution and delivery of this Agreement and the Registration Rights
Agreement by FIserv and the consummation by FIserv of the trans actions
contemplated hereby and thereby, except (i) for filings with the Commission
and the Antitrust Division under the HSR Act, and the termination of the
requisite waiting period thereunder, (ii) where the failure to obtain such
consents, authorizations or approvals or to make such filings or
registrations would not prevent the consummation of the transactions
contemplated hereby or (iii) as may be necessary as a result of any facts
or circumstances relating solely to Sellers.
(e) SEC Reports. FIserv has provided the Company and each Seller
with all required forms, reports and documents which it has been required
to file with the SEC since January 1, 1994 (collectively, the "SEC Re-
ports"), each of which has complied in all material respects with all
applicable requirements of the Secu rities Act and the Securities and Ex-
change Act of 1934, as amended (the "Exchange Act"). As of their respec-
tive dates, the SEC Reports, including, without limitation, any financial
statements or schedules included therein, did not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading,
except, in the case of any SEC Report, any statement or omission therein
that has been corrected or otherwise disclosed in a subsequent SEC Report.
The audited financial statements and unaudited interim financial statements
of FIserv included in its Annual Reports on Form 10-K for the fiscal years
ended December 31, 1993 and 1994 and in its Quarterly Reports on Form 10-Q
for the fiscal quarters ended March 31, 1994, June 30, 1994 and September
30, 1994, fairly present, in conformity with generally accepted accounting
principles applied on a consistent basis (except as may be indicated in the
notes thereto), the consolidated financial position of FIserv and its con-
solidated subsidiaries as of the dates thereof and their consolidated
results of operations, retained earnings and cash flows for the periods
then ended (subject to normal year-end adjustments and the absence of
certain footnote disclosures in the case of any unaudited interim financial
statements).
(f) Capitalization of FIserv. The authorized capital stock of FIserv
consists of 75,000,000 shares of FIserv Common Stock, of which 39,325,998
shares are validly issued and outstanding, fully paid and nonassessable.
Except pursuant to FIserv's employee stock option and restricted stock
purchase plans and as set forth in Schedule 2.03(f) hereto, as of the date
hereof, FIserv has no commitments to issue or sell any of its capital stock
or any securities or obligations convertible into or exchangeable for, or
giving any person any right to subscribe for or acquire from FIserv, any
shares of its capital stock and no securities or obligations evidencing
such rights are outstanding.
(g) FIserv Common Stock Issued to Principal Stockholders. The shares
of FIserv Common Stock to be issued to the Principal Stockholders as
consideration in accordance with Section 1.04 shall, upon issuance in
accordance with the terms hereof, be validly issued and outstanding, fully
paid and nonassessable shares of FIserv Common Stock.
(h) Absence of Material Adverse Effect. Since December 31, 1994,
FIserv has not suffered any material adverse change in its operations or
condition (financial or other) or in its assets, properties or business.
(i) Registration Statement. Neither the Registration Statement nor
any other SEC filing made by FIserv in connection herewith will at the
respective times that the Registration Statement, any other SEC filing or
any amendments or supplements thereto are filed with the SEC contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order the make the statements
therein, in light of the circumstances under which they are made, not
misleading.
(j) Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by FIserv directly
with the Sellers and the Company, without the intervention of any person on
behalf of FIserv in such manner as to give rise to any valid claim by any
person against FIserv for a finder's fee, brokerage commission, or similar
payment.
ARTICLE III
ADDITIONAL COVENANTS AND AGREEMENTS
SECTION 3.01 Conduct of Business. During the period from the date
hereof to the Closing Date, except as otherwise contemplated by this Agreement,
the Principal Stockholders shall use their commercially reasonable efforts to
cause the Company to, and the Company shall use its commercially reasonable
efforts to, conduct its operations according to its ordinary and usual course of
business and use its commercially reasonable efforts, subject to the foregoing,
to preserve substantially intact its business organization, keep available the
services of its officers and employees, and main tain its present relation ships
with licensors, suppliers, distributors, customers and others having significant
business relationships with it. Representatives of the Company will confer with
representatives of FIserv to keep it informed with respect to the general status
of the on-going operations of the business of the Company.
SECTION 3.02 Access to Information by FIserv. FIserv may prior to
the Closing Date have access to the business and properties of the Company and
information concerning its financial and legal condition as FIserv deems
necessary or advisable in connection with the consummation of the transactions
contemplated hereby, provided that such access shall not interfere with normal
operations of the Company. Sellers and the Company agree to permit FIserv and
its authorized representatives, including Deloitte & Touche, to have or cause
them to be permitted to have, after the date hereof and until the Closing Date,
full access to the premises, books and records of the Company during normal
business hours, and the officers of the Company will furnish FIserv with such
financial and operating data and other information with respect to the business
and properties of the Company as FIserv shall from time to time reasonably
request. No investigation by FIserv heretofore or hereafter made shall affect
the representations and warranties of Sellers, the Principal Stockholders and
the Company, and each such representation and warranty shall survive any such
investigation, provided, however, that in the event that as a result of any such
investigation the executive officers of FIserv, or such attorneys and
accountants as the executive officers of FIserv shall designate to conduct such
investigation, shall receive notice of material facts which, based on informa-
tion actually known to them, they shall reasonably determine would be, or
reasonably might be, required to be disclosed in the Disclosure Schedule and are
not so disclosed, FIserv will use reasonable efforts to inform Sellers, the
Principal Stockholders and the Company of such material facts and no such
material facts shall form the basis for indemnification hereunder, and provided,
further, however, that neither FIserv nor any such officers, attorneys or
accountants shall have any obligation to make any inquiry in respect of the
foregoing.
SECTION 3.03 Confidentiality. (a) The Principal Stockholders
covenant and agree for themselves and their affiliates that, for a period of
four years following the Closing, they will hold in confidence all Confidential
Information (as hereinafter defined) concerning FIserv received by them from
FIserv in connection herewith, and not use themselves or voluntarily disclose to
others any such information. If the transactions herein contemplated are not
consummated, the Principal Stockholders shall promptly return every document
furnished by FIserv in connection herewith and any copies thereof they may have
made and destroy any summaries, compilations or similar documents they may have
made or derived from such material, and have their representatives promptly
return such documents and copies and destroy such summaries, compila tions or
similar documents. The Principal Stockholders further cove nant and agree for
themselves, and their affiliates that they will keep confiden tial and not use
independently from the Company any trade secrets of the Company or FIserv.
(b) Until the Closing of the transactions contemplated herein, all
Confidential Information acquired by FIserv with respect to the Company shall be
(a) maintained in strict confidence, (b) used only for the purpose of and in
connection with evaluating the transactions contemplated herein, and (c)
disclosed only to employees and duly authorized agents and representatives of
FIserv who have been informed of the obligations of FIserv under this Section
3.03 or any other agreement with respect to such Confidential Information, have
a need to know the information in connection with consummating the transactions
contemplated herein, agree to keep such information confidential and agree to be
bound by the terms hereof to the same extent as if they were parties hereto.
FIserv shall be responsible for any breach of this Section 3.03(b) by any of its
representatives and agrees to take all reasonable measures to restrain its
representatives from prohibited or unauthorized disclosure of the Confidential
Information.
(c) For the purpose of this Agreement, the term "Confidential
Information" shall mean all information acquired by FIserv from the Company or
its representatives pursuant to Section 3.02 hereof or otherwise with respect to
its operations or business and all information acquired by the Principal
Stockholders or the Company from FIserv with respect to its operations or
business (other than in either case any information which (i) becomes generally
available to the public, (ii) was available to the party receiving disclosure on
a non-confidential basis prior to its disclosure or (iii) becomes available to
the party receiving disclosure on a non-confidential basis from a source other
than the disclosing party hereunder that is not prohibited from disclosing such
information by a contractual, legal or fiduciary obligation). If the
transactions contemplated herein are not consummated, all Confidential
Information received from the Company in written or printed or other tangible
form (whether copies or originals) shall be returned to the Company, and all
documents, memoranda, notes and other writings whatsoever prepared by FIserv or
its representatives based on the Confidential Information shall be destroyed.
SECTION 3.04 Non-Assignable Licenses, Leases and Contracts. The
Principal Stockholders and the Company shall use their commercially reasonable
efforts to obtain and deliver to FIserv at or prior to the Closing such consents
or waivers as are required in order that any contract listed on Section 2.01 of
the Disclosure Schedule which would be breach ed or violated, or would give any
other party the right to cancel the same, as a result of the occurrence of the
Closing hereunder, shall not be so breached or violated or result in such right
of cancellation. The Principal Stockholders and the Company shall use their
commercially reasonable efforts to obtain and deliver to FIserv at or prior to
the Closing such consents or waivers as shall be reasonably requested by FIserv
for any contracts not required to be listed on Section 2.01 of the Disclo sure
Schedule which, as a result of the occurrence of the Closing hereunder, would be
breached or violated or would give any other party the right to cancel the same,
in order that such contracts shall not be so breached or violated or result in
such right of cancellation.
SECTION 3.05 Non-Competition. During the period commencing on the
Closing Date and ending on the third anniversary of the Closing Date:
(a) Competition, etc. by the Principal Stockholders. No Principal
Stockholder will be engaged in any material respect in the business of
development of computer software which is competitive with software offered by
the Company to or for use by financial institutions, other than as an employee
of or consultant to the Company, FIserv or a subsidiary of FIserv.
(b) Non-Solicitation, etc. No Principal Stockholder will directly or
indirectly actively solicit for employment, or advise or recommend to any other
person that they employ or solicit for employment, any employee of the Company;
provided, however, that nothing in this Section 3.05 shall prohibit the
Principal Stockholders or any of their affiliates from employing any person who
contacts them on his or her own initiative or in response to a general
solicitation of employees through a newspaper advertisement or similar means.
(c) Limitations Reasonable. The Principal Stockholders agree that
the limitations set forth in paragraph (a) (including, without limitation, any
time or territorial limitations) are reasonable and properly re quired for the
adequate protection of the business of the Company and FIserv. In the event
that any such territorial or time limitation is deemed to be unreasonable by a
court of competent jurisdiction, the Principal Stockholders agree to the reduc-
tion of the territorial or time limitation to the area or period which such
court shall have deemed reasonable.
SECTION 3.06 Tax Election. (a) After the Closing Date, the Sellers
shall elect pursuant to Section 338(h)(10) of the Code and any comparable
provision of applicable income Tax law to treat the sale of the Shares as a sale
of assets by the Company while it is an S corporation for income Tax purposes.
FIserv and Sellers shall jointly prepare and timely file any required forms and
schedules in order to effectuate such election.
(b) In such case, FIserv and Sellers shall agree within 60 days after
the Closing to an allocation of the purchase price (including liabilities deemed
assumed or taken subject to) among the assets of the Company as of the Closing
Date pursuant to Section 338 and the regulations thereunder, which allocation
shall be reflected on a tax allocation agreement (the "Tax Allocation
Agreement"). FIserv and Sellers shall treat the price of the various assets
consistently with the Tax Allocation Agreement for all purposes.
(c) In the event of any dispute, FIserv and Sellers agree to be bound
by the conclusions of Coopers & Lybrand L.L.P. as to the allocation of the
purchase price among the assets of the Company and to set forth such conclusions
in the Tax Allocation Agreement. The expense of Coopers & Lybrand L.L.P. in
making such allocations, whether accepted by agreement or binding by reason of
dispute, shall be borne by FIserv.
SECTION 3.07 Registration Statement. Promptly after the date of this
Agreement, FIserv shall commence to use its commercially reasonable efforts to
carefully prepare and file with the SEC the Registration Statement covering no
less than 20% of the shares of FIserv Common Stock to be received by Mr. Dillon
hereunder and 25% of the shares of FIserv Common Stock to be received by the
other Principal Stockholders hereunder and to cause said Registration Statement
to become effective with the SEC and applicable state securities authorities on
or about the Closing Date hereunder. A new "shelf" registration statement shall
be carefully prepared and filed upon the expiration of the Registration
Statement. The Company and the Sellers agree to cooperate with FIserv in a
commercially reasonable manner to achieve the foregoing.
SECTION 3.08 HSR Act Filings. Promptly after the date of this
Agreement, FIserv and the Principal Shareholders shall prepare and file with the
Commission and the Antitrust Division such Notification and Report Forms as may
be required under the HSR Act to consummate the transactions contemplated
hereby.
SECTION 3.09 Exchange Act Filings. Promptly after Closing, Sellers
shall make such filings under Sections 13(d) and 16(a) of the Exchange Act as
are required thereunder and shall cooperate with FIserv in the preparation of
any filings of FIserv required under Section 12 of the Exchange Act in
connection with the transactions contemplated hereunder, including preparation
of audited and proforma financial statements with respect to the Company and
FIserv.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.01 Conditions Precedent to the Obligations of FIserv. The
obligations of FIserv under this Agreement are subject to the satisfaction in
all material respects or waiver by FIserv prior to or on the Closing Date of
each of the following conditions:
(a) Accuracy of Representations and Warranties. The representations
and warranties of the Principal Stockholders and the Sellers contained in
this Agreement, in the Disclosure Schedule or in any closing certificate or
document delivered to FIserv pursuant hereto shall be true and correct in
all material respects at and as of the Closing Date as though made at and
as of that time, except for such representations and warranties as are
specifically made as of another date and except as modified by transactions
permitted or contemplated by this Agreement, and the Principal Stockholders
and the Sellers shall each have delivered to FIserv a certificate to that
effect, including a schedule (which shall become part of the Disclosure
Schedule) of exceptions to the representations and warranties that arose
between the date hereof and the Closing Date.
(b) Compliance with Covenants. Sellers and the Company shall have
performed and complied with all covenants of this Agreement to be performed
or complied with by them at or prior to the Closing Date (except where the
failure to so perform or comply would not have a Material Adverse Effect on
the Company or prevent Sellers and the Company from consummating the
transactions contemplated hereby), and Sellers and the Company shall each
have delivered to FIserv a certificate to that effect.
(c) All Proceedings to be Satisfactory. FIserv shall have received
certified or other copies of all documents relating to Sellers and the
Company incident to the transactions contemplated hereby as FIserv may
reasonably request and such documents shall be reasonably satisfactory in
form and substance to FIserv.
(d) Opinion of Counsel for the Company. FIserv shall have received
the favorable opinion of Kinsey Ridenour Becker & Kistler, dated the
Closing Date, substantially in the form and to the effect set forth in
Exhibit A hereto.
(e) Legal Actions or Proceedings. No legal action or proceeding
shall have been instituted after the date hereof against the Company or
FIserv, arising by reason of the acquisition of the Company pursuant to
this Agreement, which is reasonably likely (i) to restrain, prohibit or
invalidate the consummation of the transactions contemplated by this
Agreement, (ii) to have a Material Adverse Effect on the Company or
(iii) to have a material adverse effect on the results of operations or
financial condition of FIserv and its subsidiaries, taken as a whole, after
giving effect to the consummation of the transactions contemplated by this
Agreement.
(f) Resignations of Directors. FIserv shall have received the
resignations of all the directors of the Company.
(g) Registration Rights Agreement. Each of the Principal
Stockholders shall have executed and delivered to FIserv the Registration
Rights Agreement.
(h) Consents. The Principal Stockholders and the Company shall have
obtained and delivered to FIserv the consents to assignment set forth in
Exhibit B hereto.
(i) HSR Act Waiting Period. The requisite waiting period under the
HSR Act shall have expired.
(j) Shares Issuable. The number of shares of FIserv Common Stock
issuable hereunder shall not exceed 18% of the outstanding capital stock of
FIserv prior to Closing.
(k) Non-Foreign Status. At the Closing, each Seller shall deliver to
FIserv a certificate of non-foreign status, in the form required by Section
1445 of the Code and the regulations thereunder, signed under penalties of
perjury. Sellers understand that such certificates will be retained by
FIserv and will be made available to the Internal Revenue Service upon
request.
(l) Supporting Documents. On or prior to the Closing Date FIserv
shall have received copies of the following supporting documents:
(i) (1) copies of the Articles of Incorporation of the Company,
and all amendments thereto, certified as of a recent date by the
Secretary of State of the State of Nebraska and (2) a certificate of
said Secretary dated as of a recent date as to the due incorpora tion
and good standing of the Company; and
(ii) certificates of the Secretary or an Assistant Secretary of
the Company, as appropriate, dated the Closing Date and certifying
(1) that attached thereto is a true and complete copy of the By-laws
of the Company as in effect on the date of such certification and at
all times since December 31, 1994; (2) that attached thereto is a true
and complete copy of resolutions adopted by the Board of Directors of
the Company authorizing the execution, delivery and performance of
this Agreement and that all such resolutions are still in full force
and effect and are all the resolutions adopted in connection with the
transactions contemplated by this Agreement; (3) that the Articles of
Incorporation of the Company have not been amended since the date of
the last amendment referred to in the certificate delivered pursuant
to clause (i)(2) above; and (4) as to the incumbency and specimen
signature of each officer of the Company executing this Agreement and
any certificate or instrument furnished pursuant hereto, and a
certificate by another officer of the Company as to the incumbency and
signature of the officer signing the certificate referred to in this
paragraph (ii).
All such documents shall be satisfactory in form and substance to
FIserv and its counsel.
SECTION 4.02 Conditions Precedent to the Obligations of Sellers. The
obligations of Sellers under this Agreement are subject to the satisfaction in
all material respects or waiver by Sellers prior to or on the Closing Date of
each of the following conditions:
(a) Accuracy of Representations and Warranties. The representations
and warranties of FIserv contained in this Agreement or in any closing
certificate or document delivered to Sellers or the Company pursuant hereto
shall be true and correct in all material respects on and as of the Closing
Date as though made at and as of that date, except for such representations
and warranties as are specifically made as of another date and except as
modified by transactions permitted or contemplated by this Agreement, and
FIserv shall have delivered to Sellers a certificate to that effect.
(b) Compliance with Covenants. FIserv shall have performed and
complied with all covenants of this Agreement to be performed or complied
with by FIserv at the Closing Date (except where the failure to so perform
or comply would not have a Material Adverse Effect on FIserv or prevent it
from consummating the transactions contemplated hereby), and FIserv shall
have delivered to Sellers a certificate to such effect.
(c) All Proceedings to be Satisfactory. Sellers and their counsel
shall have received all such counterpart originals or certified or other
copies of all documents relating to FIserv incident to the transactions
contemplated hereby as Sellers or said counsel may reasonably request and
such documents shall be reason ably satisfactory in form and substance to
Sellers and said counsel.
(d) Opinion of Counsel for FIserv. Sellers and the Company shall
have received the favorable opinion of Charles W. Sprague, Executive Vice
President and General Counsel of FIserv, dated the Closing Date,
substantially in the form and to the effect set forth in Exhibit C hereto.
(e) Legal Actions or Proceedings. No legal action or proceeding
shall have been instituted that is reasonably likely to restrain, prohibit,
violate or otherwise affect the consummation of the transactions
contemplated hereby.
(f) Registration Rights Agreement. FIserv shall have executed and
delivered to each of the Principal Stockholders the Registration Rights
Agreement.
(g) HSR Act Waiting Period. The requisite waiting period under the
HSR Act shall have expired.
(h) Registration Statement. The Registration Statement shall have
become effective under the Securities Act and under applicable state law.
(i) Supporting Documents. On or prior to the Closing Date, Sellers,
the Company and their counsel shall have received copies of the following
supporting documents:
(i) (1) copies of the Articles of Incorpora tion of FIserv, and
all amendments thereto, certified as of a recent date by the Secretary
of State of the State of Wisconsin and (2) a certificate of said
Secretary dated as of a recent date as to the due incorporation and
good standing of FIserv; and
(ii) a certificate of the Secretary or an Assistant Secretary of
FIserv dated the Closing Date and certifying (1) that attached thereto
is a true and complete copy of the By-laws of FIserv as in effect on
the date of such certification and at all times since December 31,
1992; (2) that attached thereto is a true and complete copy of
resolutions adopted by the Board of Directors of FIserv authorizing
the execution, delivery and performance of this Agreement and that all
such resolutions are still in full force and effect and are all the
resolutions adopted in connection with the transactions contemplated
by this Agreement; (3) that the Articles of Incorporation of FIserv
has not been amended since the date of the last amendment referred to
in the certificate delivered pursuant to clause (i)(2) above; and
(4) as to the incumbency and specimen signature of each officer of
FIserv executing this Agreement and a certification by another officer
of FIserv as to the incumbency and signature of the officer signing
the certificate referred to in this paragraph (ii).
All such documents shall be satisfactory in form and substance to
Sellers and their counsel.
ARTICLE V
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
SECTION 5.01 Survival. Subject to the limitations and other
provisions of this Agreement, the representations, warranties, covenants and
agreements of the parties hereto contained in Section 2.01(u), but solely as it
pertains to federal or state taxes calculated and based upon the net income of
the Company ("Income Taxes"), and in Sections 2.02 and 2.03 shall survive the
Closing and shall remain in full force and effect, regardless of any
investigation made by or on behalf of FIserv or Sellers until May 1, 1997. All
other representations and warranties and all covenants and agreements, excepting
only those which by their express terms apply to post-Closing matters, shall
expire at and as of the completion of Closing.
SECTION 5.02 Indemnification for Income Taxes. (a) The Principal
Stockholders shall jointly and severally (reserving as to one another all rights
of contribution and indemnity) indemnify FIserv, the Company and their
affiliates and hold it harmless on an after-tax basis from and against (i) any
and all Income Taxes imposed on or incurred by or relating to the Company (or
any predecessor company thereto) in respect of all periods (or any portion
thereof) prior to and including the Closing Date (a "Pre-Closing Period"), (ii)
the effect, if any, on FIserv, the Company or their affiliates in any period
that ends after the Closing Date of an adjustment with respect to Income Taxes
made with respect to a Pre-Closing Period as a consequence of any election,
filing or other affirmative act or intentional omission of the Sellers or the
Company acting at the direction of Sellers, (iii) any increased Income Tax on
FIserv, the Company or their affiliates in any period as a result of its
inability to make a valid election under Section 338(h)(10) of the Code or
similar provision of applicable law that is due to a circumstance caused by the
Company or a shareholder of the Company occurring prior to Closing or by the
Sellers' failure or refusal to timely file the election required by Section
3.06(a) hereof or to comply with the last sentence of Section 3.06(b) hereof and
(iv) in each case together with all reasonable legal fees and expenses incurred
by FIserv, the Company or their affiliates in connection therewith.
(b) The indemnity provided for in this Section 5.02 (i) shall apply
notwithstanding any investigation made by FIserv in connection with the
transactions contemplated by this Agreement, (ii) shall be separate and inde-
pendent of any other indemnity provision contained herein and (iii) anything in
this Agreement to the contrary notwithstanding shall survive until three months
after the expiration of the applicable statute of limitations, including
extensions or waivers thereof, for any such Income Taxes.
(c) The Sellers shall promptly forward to FIserv a copy of all
written communications from a Taxing authority received by any of them that
relates to any Income Tax imposed on, in connection with or with respect to the
Company for any Pre-Closing Period. FIserv shall acknowledge, specifically,
receipt of such communication. FIserv shall promptly forward to the Sellers a
copy of all written communications from a Taxing authority received by it that
relates to Income Taxes of the Company for any Pre-Closing Period.
(d) FIserv agrees not to settle or make any payment of an amount
claimed to be due with respect to a proposed adjustment described in
subparagraph (c) above with respect to any Pre-Closing Period for at least 15
days after giving such acknowledgement or notice. If, within such 15-day
period, FIserv receives a written request from the Sellers that the proposed
adjustments be contested, which includes a statement of a reasonable basis in
fact and in law for such contest, FIserv shall contest such proposed adjustments
in good faith, and agrees to keep the Sellers informed as to its progress, all
at the Sellers' expense. The Sellers shall cooperate with FIserv in connection
with any such proceeding. If Sellers shall so elect, FIserv shall designate a
qualified representative selected by Sellers to pursue such proceedings,
including any appeal of an adverse decision, all at Sellers' expense.
(e) To the extent permitted by applicable law, the parties shall
elect to treat the period that includes the Closing Date with respect to any
Income Tax as ending at the close of business on the Closing Date and shall take
such steps as may be necessary therefor. For purposes of this indemnification,
any Income Taxes for a period which includes but does not end on the Closing
Date shall be allocated between the Pre-Closing Period and the balance of the
period based on a closing of the books as of the close of the Closing Date,
provided, however, that exemptions, allocations and deductions that are required
to be calculated on an annual basis and any real property or personal property
taxes shall be allocated based on the relative number of days in the Pre-Closing
Period and the balance of the period.
SECTION 5.03 General Indemnity. (a) Subject to the terms and
conditions of this Article V (other than Section 5.06), the Principal
Stockholders, jointly and severally (reserving as to one another all rights of
contribution and indemnity), hereby agree to indemnify and hold FIserv, the
Company and their affiliates harmless on an after-tax basis from and against all
damages to and liabilities of FIserv, including without limitation those re-
sulting from or relating to demands, claims, actions or causes of action,
assessments or other losses, costs and expenses relating thereto, interest and
penalties thereon and reasonable attorneys' fees and expenses in re spect
thereof, by reason of or resulting from (i) a breach of any representation or
warranty of the Sellers or the Principal Stockholders, which survives the
Closing, contained in or made pursuant to this Agreement, (ii) any fraudulent
misrepresentation by the Sellers, the Principal Stockholders or the Company, as
the case maybe, contained in or made pursuant to this Agreement, or (iii) the
fraudulent failure of the Sellers, the Principal Stockholders or, on or prior to
the Closing Date, the Company, as the case may be, to disclose information
material to the determination of FIserv to purchase the Common Stock of the
Company, but only if such nondisclosure has a material adverse effect upon
FIserv subsequent to the Closing.
(b) Subject to the terms and conditions of this Article V (other than
Section 5.06), FIserv hereby agrees to indemnify, defend and hold the Sellers
harmless from and against all damages to and liabilities of the Sellers, in-
cluding without limitation those resulting from or relating to demands, claims,
actions or causes of action, assessments or other losses, costs and expenses
relating thereto, interest and penalties thereon and reasonable attorneys' fees
and expenses in respect thereof, by reason of or resulting from (i) a breach of
any representation or warranty of FIserv con tained in or made pursuant to this
Agreement, (ii) any failure of FIserv duly to perform or observe any term,
provision, covenant or agreement to be performed or observed by FIserv pursuant
to this Agreement or (iii) the conduct of the business of the Company by FIserv
subsequent to the Closing Date.
(c) The parties hereby acknowledge and agree that their sole and
exclusive remedy with respect to any and all claims relating to the subject
matter of this Agreement (other than a claim for fraud or for specific
performance of the terms of this Agreement) shall be pursuant to the indemnifi-
cation provisions set forth in this Article V. Notwithstanding the foregoing,
the provisions of Section 5.06 shall be the exclusive provisions of this
Agreement covering the subject matter thereof.
(d) The parties shall take all reasonable steps to mitigate all
liabilities and damages upon and after becoming aware of any event which could
reasonably be expected to give rise to such liabilities and damages. In no
event shall any party be liable for consequential damages.
SECTION 5.04 Third Party Claims. If any claim, assertion or
proceeding by or in respect of a third party is made against an indemnified
party or any event in respect of a third party occurs, and if the indemnified
party intends to seek indemnity with respect thereto under this Article V (other
than Section 5.06) or to apply any damage or liability arising therefrom to the
$100,000 amount referred to in Section 5.05, the indemnified party shall
promptly notify the indemnifying party of such claim in writing. The
indemnifying party shall have 30 days after receipt of such notice to undertake,
conduct and control, through counsel of its own choosing and at its expense, the
settlement or defense thereof, and the indemnified party shall cooperate with it
in connection therewith; provided, that, (a) the indemnifying party shall permit
the indemnified party to participate in such settlement or defense through coun-
sel chosen by the indemnified party; provided that the fees and expenses of such
counsel shall be borne by the indemnified party, (b) the indemnifying party
shall promptly reimburse the indemnified party for the full amount of any lia-
bility resulting from such claim and all related and reasonable expenses (other
than the fees and expenses of counsel as aforesaid) incurred by the indemnified
party within the limits of this Article V (other than Section 5.06) and subject
to the $100,000 amount referred to in Section 5.05, (c) the indemnified party
shall not, without the prior written consent of the indemnifying party, settle
or compromise any claim or consent to the entry of any judgment which does not
include as an unconditional term thereof the giving by the claimant or the
plaintiff to the indemnified party a release from all liability in respect of
such claim and (d) nothing herein shall require any indemnified party to consent
to the entry of any order, injunction or consent decree affecting its ability to
conduct its business operations after the date thereof. So long as the
indemnifying party is reasonably contesting any such claim in good faith, the
indemnified party shall not pay or settle any such claim. Notwithstanding the
foregoing, the indemnified party shall have the right to pay or settle any such
claim, provided that in such event it shall waive any right to indemnity
therefor by the indemnifying party. If the indemnifying party does not notify
the indemnified party within 30 days after the receipt of the indemnified
party's written notice of a claim of indemnity hereunder that it elects to
undertake the defense thereof, the indemnified party shall have the right to
contest, settle or compromise the claim in the exercise of its reasonable
judgment at the expense of the indemnifying party.
SECTION 5.05 Limitation on Indemnities. No claim for indemnification
will be made by FIserv or the Company or by Sellers under Section 5.03(a)(i) or
(b)(i) hereof with respect to any individual item of liability or damage unless
and to the extent that the aggregate of all such claims by FIserv or the Company
or by Sellers, as the case may be, shall be in excess of $100,000, and neither
FIserv or the Company nor Sellers, as the case may be, shall be required to pay
or be liable for the first $100,000 in aggregate amount of such damages and
liabilities. Payments by an indemnifying party pursuant to Section 5.03 shall
be limited to the amount of any liability or damage that remains after deducting
therefrom any insurance proceeds and any indemnity, contribution or other
similar payment reasonably recoverable by the indemnified party from any third
party with respect thereto, and otherwise shall be adjusted to reflect the
amount of any tax benefit realized by the indemnitee as a result of any
reduction in the Purchase Price. Notwithstanding anything to the contrary
contained in this Agreement, no claim by any party hereto may be asserted, nor
may any action be commenced against any party hereto, for breach of any
representation, warranty, covenant or agreement unless notice thereof is
received in writing describing in reasonable detail the facts or circumstances
with respect to the subject matter of such claim on or before the date on which
the representation, warran ty, covenant or agreement on which such claim or
action is based ceases to survive as set forth in Section 5.01, irrespective of
whether the subject matter of such claim or action shall have occurred before,
on or after such date. Any payment made by the Sellers to FIserv or the
Company, as the case may be, under Article V shall constitute a reduction of the
Purchase Price for all purposes, including federal, state and local tax as well
as financial accounting purposes. The provisions of Section 5.04 and this
Section 5.05 shall not apply to claims for indemnification under Section 5.02 or
5.06 hereof.
SECTION 5.06 Securities Act Indemnification. (a) In connection with
the registration of FIserv Common Stock under the Securities Act pursuant to
Section 3.07 hereof, FIserv will indemnify and hold harmless each seller of
FIserv Common Stock thereunder and each underwriter of FIserv Common Stock
thereunder and each other person, if any, who controls such seller or
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such seller or
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement
under which such FIserv Common Stock was registered under the Securities Act
pursuant to Section 3.07, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each such seller, each such underwriter and each
such controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that FIserv will not be liable in any
such case if and to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission so made in conformity with information furnished
by such seller (pursuant to Section 2.02(g) or otherwise), such underwriter or
such controlling person in writing specifically for use in such Registration
Statement or prospectus.
(b) In connection with the registration of FIserv Common Stock under
the Securities Act pursuant to Section 3.07 hereof, each seller of FIserv Common
Stock thereunder, severally and not jointly, will indemnify and hold harmless
FIserv and each person, if any, who controls FIserv within the meaning of the
Securities Act, each officer of FIserv who signs the Registration Statement,
each director of FIserv, each underwriter and each person who controls any
underwriter within the meaning of the Securities Act, against all losses,
claims, damages or liabilities, joint or several, to which FIserv or such
officer or director or underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement under which such FIserv Common Stock was
registered under the Securities Act pursuant to Section 3.07, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse FIserv and each such
officer, director, underwriter and controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that such seller will be liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information pertaining to
such seller, as such, furnished in writing to FIserv by such seller (pursuant to
Section 2.02(g) or otherwise) specifically for use in such Registration
Statement or prospectus; provided, further, however, that the liability of each
seller hereunder shall be limited to the proportion of any such loss, claim,
damage, liability or expense which is equal to the proportion that the public
offering price of shares sold by such seller under such Registration Statement
bears to the total public offering price of all securities sold thereunder, but
not to exceed the proceeds received by such seller from the sale of FIserv
Common Stock covered by such Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section
5.06 of notice of the commencement of any action, such indemnified party shall,
if a claim in respect thereof is to be made against the indemnifying party
hereunder, notify the indemnifying party in writing thereof, but the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party other than under this Section 5.06. In
case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate in and, to the extent it shall wish, to
assume and undertake the defense thereof with counsel satisfactory to such
indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under this Section 5.06 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; provided,
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party, or if
the interests of the indemnified party reasonably may be deemed to conflict with
the interests of the indemnifying party, the indemnified party shall have the
right to select a separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the expenses and
fees of such separate counsel and other expenses related to such participation
to be reimbursed by the indemnifying party as incurred.
(d) Notwithstanding the foregoing, any indemnified party shall have
the right to retain its own counsel in any such action, but the fees and
disbursements of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party shall have failed to retain counsel for the
indemnified person as aforesaid or (ii) the indemnifying party and such
indemnified party shall have mutually agreed to the retention of such counsel.
It is understood that the indemnifying party shall not, in connection with any
action or related actions in the same jurisdiction, be liable for the fees and
disbursements of more than one separate firm qualified in such jurisdiction to
act as counsel for the indemnified party. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
(e) If the indemnification provided for in the first two paragraphs of
this Section 5.06 is unavailable or insufficient to hold harmless an indemnified
party under such paragraphs in respect of any losses, claims, damages or
liabilities or actions in respect thereof referred to therein, then each
indemnifying party shall in lieu of indemnifying such indemnified party con-
tribute to the amount paid or payable by such indemnified party as a result of
such losses, claims, damages, liabilities or actions in such proportion as
appropriate to reflect the relative fault of FIserv, on the one hand, and the
underwriters and the sellers of such FIserv Common Stock, on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or actions, as well as any other relevant equitable
considerations, including the failure to give any notice under the third
paragraph of this Section 5.06. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact relates to information supplied by FIserv, on the one hand,
or the underwriters and the sellers of such FIserv Common Stock, on the other,
and to the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. FIserv and each
seller of FIserv Common Stock, severally and not jointly, agree that it would
not be just and equitable if contributions pursuant to this paragraph were
determined by pro rata allocation (even if all of the sellers of such FIserv
Common Stock were treated as one entity for such purpose) or by any other method
of allocation which did not take account of the equitable considerations
referred to above in this paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities or
action in respect thereof, referred to above in this paragraph, shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph, no seller hereunder shall be
required to contribute any amount in excess of the lesser of (i) the proportion
that the public offering price of shares sold by such seller under such
Registration Statement bears to the total public offering price of all
securities sold thereunder, but not to exceed the proceeds received by such
seller from the sale of FIserv Common Stock covered by such registration
statement and (ii) the amount of any damages which they would have otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission. No person guilty of fraudulent misrepresentations (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who is not guilty of such fraudulent misrepresentation.
(f) The indemnification of underwriters provided for in this Sec-
tion 5.06 shall be on such other terms and conditions as are at the time
customary and reasonably required by such underwriters. In that event the
indemnification of the sellers of FIserv Common Stock in such underwriting shall
at the sellers' request be modified to conform to such terms and conditions.
ARTICLE VI
FURTHER ASSURANCES
SECTION 6.01 Further Assurances. At any time and from time to time
on and after the Closing Date (i) at the request of FIserv, Sellers shall
deliver to FIserv any records, documents and data possessed by Sellers and not
previously delivered to FIserv to which FIserv in enti tled and execute and
deliver or cause to be executed and delivered all such deeds, assign ments,
consents, documents and further instruments of transfer and conveyance, and take
or cause to be taken all such other actions, as FIserv may reasonably deem
necessary or desirable in order to fully and effectively vest in FIserv, or to
confirm its title to and possession of, the Shares or to assist FIserv in
exercising rights with respect thereto which FIserv is entitled to exercise
pursuant to the terms of this Agreement; and (ii) FIserv shall execute and
deliver or cause to be executed and delivered such further instruments and take
or cause to be taken such further actions as Sellers may reasonably deem
necessary or desirable to carry out the terms and provisions of this Agreement.
SECTION 6.02 Books and Records. (a) FIserv agrees that it shall
preserve and keep all books and records relating to the Company in FIserv's
possession until six months following the expiration of the statute of
limitations (including extensions thereof) applicable to the Tax Returns filed
by or with respect to the Company for taxable periods ending prior to or on the
Closing Date to which such books or records are relevant. After such time,
before FIserv shall dispose of any of such books and records, at least 90
calendar days' prior written notice to such effect shall be given by FIserv to
the Principal Stockholders, and the Principal Stockholders shall be given an
opportunity, at their sole cost and expense, to remove all or any part of such
books and records as the Principal Stockholders may select, and the Principal
Stockholders may retain copies thereof. Duly authorized representatives of
Sellers shall, upon reasonable notice, have access to such books and records
during normal business hours to examine, in spect and copy such books and re-
cords.
(b) In any instance in which either a Seller, the Company or FIserv,
as the case may be, is required to prepare or file (or cause to be filed) Tax
Returns which cover a period that includes the Closing Date or to respond to an
audit by the Internal Revenue Service or other governmental agency with re spect
to a period prior to the Closing Date, each Seller, the Company or FIserv, as
the case may be, will furnish all infor mation and records reasonably available
to it and reasonably requested of him, her or it and necessary or appropriate
for use in preparing such returns or responding to such audit.
SECTION 6.03 Preparation of Income Tax Returns and Payment of Taxes.
Sellers shall be responsible for the preparation, signing and filing of all
Income Tax Returns of the Company for all taxable periods ending on or prior to
the Closing Date (including the short taxable period ending on the Closing
Date). Sellers shall be responsible for the payment of all Income Taxes related
to any Pre-Closing Period unless and to the extent it is accrued, provided for
or accounted for on the Closing Date. Sellers shall furnish FIserv with a copy
of the Income Tax Return proposed to be filed with respect to any Pre-Closing
Period with sufficient time for FIserv to review such Income Tax Return prior to
its due date. FIserv and its affiliates shall provide such cooperation as may
reasonably be requested in the filing of such Income Tax Returns. FIserv and/or
the Company shall be responsible for the preparation of all other Tax Returns of
the Company due after the Closing Date and the payment of all amounts due on
such Tax Returns.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 Termination. This Agreement may be terminated at any
time prior to the Closing:
(a) by the mutual written consent of Sellers and FIserv;
(b) by Sellers, if the Closing shall not have occurred by the
90th calendar day after the date hereof through no fault of Sellers; or
(c) by either Sellers or FIserv, if the Closing shall not have
occurred prior to the first anniversary of this Agreement; provided,
however, that the right to terminate this Agreement under this Section
7.01(c) shall not be available to any party whose failure to fulfill any
obligation under this Agreement shall have been the cause of, or shall have
resulted in, the failure of the Closing to occur prior to such date.
SECTION 7.02 Effect of Termination. In the event of termination
of this Agreement as provided in Section 7.01, this Agreement shall
forthwith become void and there shall be no liability on the part of any
party hereto, except that (i) Sections 3.03, 7.03, 7.08, 7.09, 7.10 and
7.14 hereof shall survive such termination and (ii) nothing herein shall
relieve any party from liability for any willful breach of any other
provision hereof.
SECTION 7.03 Expenses, Etc. Whether or not the transactions
contemplated by this Agreement are consummated, none of the parties hereto
shall have any obligation to pay any of the fees and expenses of the other
parties incident to the negotiation, preparation and execution of this
Agreement, including the fees and expenses of counsel, accountants and
other experts. Each of Sellers, the Company and FIserv will indemnify the
other parties, and hold them harmless from and against any claims for
finders' fees or brokerage commissions in relation to or in connection with
such transactions as a result of any agreement or understanding between
such indemnifying party and any third party. Sellers shall pay and be
responsible for any stock transfer Taxes arising from the sale of the
Shares hereunder.
SECTION 7.04 Execution in Counterparts. For the convenience of
the parties, this Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
SECTION 7.05 Notices. All notices which are required or may be
given pursuant to the terms of this Agreement shall be in writing and shall
be sufficient in all respects if given in writing and delivered or mailed
by registered or certified mail postage prepaid, or sent by telex,
telecopier, facsimile transmission or telegraph as follows:
If to the Company, to:
Information Technology, Inc.
1345 Old Cheney Road
Lincoln, NE 68512
FAX (402) 421-4236
Attention: Chairman of the Board
With a copy to:
Brian K. Ridenour
Kinsey Ridenour Becker & Kistler
206 South 13th Street, Suite 1301
Lincoln, NE 68508
or
P. O. Box 22512
Lincoln, NE 68542
FAX (402) 438-1654
If to any Seller, at such Seller's address as set forth on Annex I
hereto, with a copy to:
Brian K. Ridenour
Kinsey Ridenour Becker & Kistler
206 South 13th Street, Suite 1301
Lincoln, NE 68508
or
P. O. Box 22512
Lincoln, NE 68542
FAX (402) 438-1654
If to FIserv, to:
FIserv, Inc.
255 FIserv Drive
Brookfield, WI 53045
or
P.O. Box 979
Brookfield, WI 53008-0979
FAX (414) 879-5245
Attention: Kenneth R. Jensen
with a copy to:
Charles W. Sprague
FIserv, Inc.
255 FIserv Drive
Brookfield, WI 53045
or
P.O. Box 979
Brookfield, WI 53008-0979
FAX (414) 879-5532
or such other address or addresses as any party shall have designated by notice
in writing to the other parties. Any notice or other communication pursuant to
this Agreement shall be deemed to have been duly given or made and to have
become effective when delivered in hand to the party to which directed or, if
sent by registered or certified mail postage prepaid or by telex, telecopier,
facsimile transmission or telegraph and properly addressed as set forth above,
at the time when received by the addressee.
SECTION 7.06 Waivers. Any party hereto (as to itself, but not as to
other parties without their consent) may, by written notice to the other parties
hereto, (i) extend the time for the performance of any of the obligations or
other actions of the other parties under this Agreement; (ii) waive any
inaccuracies in the representations or warranties of another party contained in
this Agreement or in any document delivered pursuant to this Agreement; (iii)
waive compliance with any of the conditions or covenants of another party
contained in this Agreement; or (iv) waive performance of any of the obligations
of another party under this Agreement. Except as otherwise provided in the pre-
ceding sentence or Section 3.02 hereof, no action taken pursuant to this
Agreement, including without limitation any investigation by or on behalf of any
party, shall be deemed to constitute a waiver by the party taking such action of
compliance with any representation, warranty, covenant or agreement contained in
this Agreement. The waiver by any party hereto of a breach of any provision of
this Agreement shall not operate or be construed a waiver of any subsequent
breach.
SECTION 7.07 Amendments, Supplements, etc. At any time this
Agreement may be amended or supplemented by such additional agreements, articles
or certificates, as may be determined by the parties hereto to be necessary,
desirable or expedient to further the purposes of the Agreement, or to clarify
the intention of the parties hereto, or to add to or modify the covenants, terms
or conditions hereof or to effect or facilitate any governmental approval or
acceptance of this Agreement or to effect or facilitate the filing or recording
of this Agreement or the consummation of any of the transactions contemplated
hereby. Any such instrument must be in writing and signed by all parties.
SECTION 7.08 Entire Agreement. This Agreement, its Exhibits and
Schedules and the documents executed on the Closing Date in connection herewith,
constitute the entire agreement between the parties hereto with respect to the
subject matter hereof and supersede all prior agreements and understandings,
oral and written, between the parties hereto with respect to the subject matter
hereof. No representation, warranty, promise, inducement or statement of
intention has been made by any party hereto which is not embodied in this
Agreement or such other documents, and no party hereto shall be bound by, or be
liable for, any alleged representation, warranty, promise, inducement or
statement of intention not embodied herein or therein.
SECTION 7.09 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nebraska.
SECTION 7.10 Binding Effect, Benefits. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors and assigns. Notwithstanding anything contained in this Agreement to
the contrary, nothing in this Agreement, expressed or implied, is intended to
confer on any person other than the parties hereto or their respective succes-
sors and assigns, any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
SECTION 7.11 Assignability. Neither this Agreement nor any of the
parties' rights hereunder shall be assignable by any party hereto without the
prior written consent of the other parties hereto, except that FIserv may assign
its rights and delegate its obligations hereunder to a wholly-owned subsidiary
of FIserv, provided FIserv remains obligated as the guarantor of such
subsidiary's performance and, provided further, the stock deliverable to the
Principal Stockholders as part of the Purchase Price remains the fully
registered Common Stock of FIserv.
SECTION 7.12 Disclosure Schedule. Disclosure of information in any
portion of the Disclosure Schedule hereto shall be deemed disclosure in all
other portions of the Disclosure Schedule.
SECTION 7.13 Public Announcements. FIserv, Sellers and the Company
will consult with each other before issuing any press release or otherwise
making any public statement with respect to the transactions contemplated herein
and shall not issue any such press release or make any such public statement
without the approval of the other, unless counsel has advised such party that
such release or other public statement must be issued immediately and the
issuing party has not been able, despite its good faith efforts, to secure the
prior approval of the other party.
SECTION 7.14 Invalid Provisions. If any provision of this Agreement
is held to be illegal, invalid or unenforceable under any present or future law,
rule or regulation, such provision shall be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof. The remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance herefrom.
Furthermore, in lieu of such illegal, invalid or unenforceable provision, there
shall be added automatically as a part of this Agreement a legal, valid and
enforceable provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the date first above written.
FISERV, INC.
By KENNETH R. JENSEN
-----------------------
Senior Executive Vice President
SELLERS
DONALD F. DILLON
----------------------
Donald F. Dillon
DALE M. JENSEN
----------------------
Dale M. Jensen
PATRICK J. DERRIGAN
---------------------
Patrick J. Kerrigan
DAVID B. POLICKY
---------------------
David B. Policky
D. B. VARNER
---------------------
D. B. Varner
INFORMATION TECHNOLOGY, INC.
By DONALD F. DILLON
--------------------
Chairman of the Board
<PAGE>
ANNEX I
Names and Addresses of Sellers
Name and Address No. of Shares Owned
Donald F. Dillon* 11,399 shares
6600 South 56th Street
Lincoln, NE 68516
Dale M. Jensen* 7,599 shares
2417 Ridge Road
Lincoln, NE 68512
Patrick J. Kerrigan* 1,000 shares
7900 South 14th Street
Lincoln, NE 68512
David B. Policky 1 share
6200 Frontier Road
Lincoln, NE 68516
D.B. Varner 1 share
3901 South 27th Street, #19
Lincoln, NE 68502
* Principal Stockholders
<PAGE>
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
, 1995
To the several persons named
on Annex A hereto
Dear Sirs:
This will confirm that in connection with the acquisition of all the
outstanding capital stock of Information Technology, Inc., a Nebraska
corporation (the "Company"), by FIserv, Inc., a Wisconsin corporation
("FIserv"), pursuant to the Stock Purchase Agreement dated as of April 6, 1995
(the "Stock Purchase Agreement") among FIserv, The Stockholders Named in Annex I
Thereof (the "Stockholders") and the Company which provides for the issuance as
purchase consideration of an aggregate number of whole shares of Common Stock,
$.01 par value, of FIserv as is determined under the provisions thereof
(referred to herein as the "Restricted Stock" (as such term is defined herein)),
and as an inducement to you to enter into the Stock Purchase Agreement and to
consummate the transactions contemplated thereby, FIserv hereby covenants and
agrees with each of you, and with each subsequent holder of Restricted Stock, as
follows:
1. Certain Definitions. As used herein, the following terms shall
have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the shares of common stock, $.01 par value,
of FIserv, as constituted as of the date of this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
"Registration Expenses" shall mean the expenses so described in
Section 7 hereof.
"Restricted Stock" shall mean any shares of capital stock of the
Company owned by any of the Shareholders and any subsequent holders, the
certificates for which are required to bear the legend set forth in Section
2 hereof (which shares consist on the date hereof of the shares of
Common Stock issued to the Shareholders on the date hereof).
"Securities Act" shall mean the Securities Act of 1933 or any similar
federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in Section 7
hereof.
2. Restrictive Legend. Each certificate representing the Common
Stock issued to the Stockholders and each certificate issued upon exchange or
transfer of any such Common Stock, until such legend is removed or such shares
are sold in accordance with the other provisions hereof, shall be stamped or
otherwise imprinted with a legend substantially in the following form:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND MAY NOT BE
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE
BEEN REGISTERED UNDER THAT ACT OR AN EXEMPTION FROM
REGISTRATION IS AVAILABLE."
3. Notice of Proposed Transfer. Prior to any proposed transfer of
any Restricted Stock (other than pursuant to the Registration Statement on Form
S-3 filed by FIserv pursuant to Section 3.07 of the Stock Purchase Agreement or
under the circumstances described in Section 4 or 5 hereof), the holder thereof
shall give written notice to FIserv of its intention to effect such transfer.
Each such notice shall describe the manner of the proposed transfer and, if
requested by FIserv, shall be accompanied by an opinion of counsel reasonably
satisfactory to FIserv to the effect that the proposed transfer of the
Restricted Stock may be effected without registration under the Securities Act,
whereupon the holder of such Restricted Stock shall be entitled to transfer
such Restricted Stock in accordance with the terms of its notice. Each
certificate of Restricted Stock transferred as above provided shall bear the
legend set forth in Section 2, unless (i) such transfer is in accordance with
the provisions of Rule 144 (or any other rule permitting public sale without
registration under the Securities Act) or (ii) the opinion of counsel referred
to above is to the further effect that the transferee and any subsequent
transferee would be entitled to transfer such securities in a public sale
without registration under the Securities Act.
The foregoing restrictions on transferability of Restricted Stock
shall terminate as to any particular shares of Restricted Stock when such shares
shall have been effectively registered under the Securities Act and sold or
otherwise disposed of in accordance with the intended method of disposition by
the seller or sellers thereof set forth in the registration statement concerning
such shares. Whenever a holder of Restricted Stock is able to reasonably
demonstrate to FIserv (and its counsel) that the provisions of Rule 144(k) of
the Securities Act are available to such holder without limitation, such holder
of Restricted Stock shall be entitled to receive from FIserv, without expense, a
new certificate not bearing the restrictive legend set forth in Section 2.
4. Required Registration.
(a) At any time prior to the fourth anniversary hereof the holders of
Restricted Stock may request FIserv to register under the Securities Act
all or any portion of the Restricted Stock held by such requesting holder
or holders for sale in the manner specified in such notice.
(b) Promptly following receipt of any notice under this Section 4,
FIserv shall immediately notify any holders of Restricted Stock from whom
notice has not been received and shall use its best efforts to register (or
amend an existing registration statement to provide for registration) under
the Securities Act, for public sale in accordance with the method of
disposition specified in such notice from requesting holders, the number of
shares of Restricted Stock specified in such notice (and in any notices
received from other holders within 20 days after their receipt of such
notice from FIserv). If such method of disposition shall be an
underwritten public offering, FIserv may designate the managing underwriter
of such offering. Notwithstanding anything to the contrary contained
herein, the obligation of FIserv under this Section 4 shall be deemed
satisfied only when a registration statement covering all shares of
Restricted Stock specified in notices received as aforesaid, for sale in
accordance with the method of disposition specified by the requesting
holder, shall have become effective. If such method of disposition is a
firm commitment underwritten public offering, the obligation of FIserv
under this Section 4 shall be deemed satisfied only when a registration
statement covering all shares of Restricted Stock specified in notices
received as aforesaid, for sale in a firm commitment underwritten public
offering, shall have become effective and all such shares shall have been
sold pursuant thereto.
(c) FIserv and any other party having registration rights with
respect to FIserv Common Stock (or securities convertible into or
exchangeable for FIserv Common Stock) shall be entitled to include in any
registration statement referred to in this Section 4, for sale in
accordance with the method of disposition specified by the requesting
holders, shares of Common Stock to be sold by FIserv for its own account or
for the account of such other parties, except as and to the extent that, in
the opinion of the managing underwriter (if such method of disposition
shall be an underwritten public offering), such inclusion would adversely
affect the marketing of the Restricted Stock to be sold. It is expressly
understood that, notwithstanding the provisions of this Section 4, FIserv
shall be permitted to effect another registration of its Common Stock,
whether for its own account or that of other holders, during the period
from the date of receipt of a notice from requesting holders pursuant to
this Section 4 until the completion of the period of distribution of the
registration contemplated thereby.
5. Incidental Registration. If FIserv at any time prior to the
fourth anniversary hereof (other than pursuant to Section 4 hereof) proposes to
register any of its Common Stock under the Securities Act for sale to the
public, whether for its own account or for the account of other security holders
or both (except with respect to registration statements on Form S-4 or S-8 or
another form not available for registering the Restricted Stock for sale to the
public), it will give written notice at such time to all holders of outstanding
Restricted Stock of its intention to do so. Upon the written request of any
such holder, given within 10 days after receipt of any such notice by FIserv, to
register any of its Restricted Stock (which request shall state the intended
method of disposition thereof), FIserv will use its best efforts to cause the
Restricted Stock as to which registration shall have been so requested, to be
included in the securities to be covered by the registration statement proposed
to be filed by FIserv, all to the extent requisite to permit the sale or other
disposition by the holder (in accordance with its written request) of such
Restricted Stock so registered. In the event that any registration pursuant to
this Section 5 shall be, in whole or in part, an underwritten public offering of
Common Stock, any request by a holder pursuant to this Section 5 to register
Restricted Stock shall be deemed to be such holder's agreement to sell such
shares exclusively in such offering on the same terms and conditions as the
shares of Common Stock otherwise being sold through underwriters under such
registration. The number of shares of Restricted Stock to be included in such
an underwriting may be reduced pro rata among the requesting holders of
Restricted Stock based upon the number of shares so requested to be registered
if and to the extent that the managing underwriter shall reasonably and in good
faith determine that such inclusion would adversely affect the marketing of the
securities to be sold by FIserv therein.
Notwithstanding anything to the contrary contained in this Section 5,
in the event that there is a firm commitment underwritten public offering of
securities of FIserv pursuant to a registration covering Restricted Stock and a
holder of Restricted Stock does not elect to sell his Restricted Stock to the
underwriters of FIserv's securities in connection with such offering, such
holder shall refrain from selling such Restricted Stock during the period of
distribution of the Company's securities by such underwriters and the period in
which the underwriting syndicate participates in the after market; provided,
however, that such holder shall, in any event, be entitled to sell its
Restricted Stock commencing on the 90th day after the effective date of such
registration statement.
6. Registration Procedures and Expenses. If and whenever FIserv is
required by the provisions of Section 4 or 5 hereof to use its best efforts to
effect the registration of any of the Restricted Stock under the Securities Act,
FIserv will, as expeditiously as possible:
(a) prepare and file with the Commission a registration statement
(which, in the case of an underwritten public offering pursuant to Section
4 hereof, shall be on Form S-3 or other form of general applicability
satisfactory to the managing underwriter selected as therein provided) with
respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for the period of the
distribution contemplated thereby (determined as hereinafter provided);
(b) prepare and file with the Commission such amendments and sup-
plements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for the period specified in paragraph (a) above and as
comply with the provisions of the Securities Act with respect to the dis-
position of all Restricted Stock covered by such registration statement in
accordance with the sellers' intended method of disposition set forth in
such registration statement for such period;
(c) furnish to each seller and to each underwriter such number of
copies of the registration statement and the prospectus included therein
(including each preliminary prospectus) as such persons may reasonably
request in order to facilitate the public sale or other disposition of the
Restricted Stock covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted Stock
covered by such registration statement under the securities or blue sky
laws of such jurisdictions as the sellers of Restricted Stock or, in the
case of an underwritten public offering, the managing underwriter, shall
reasonably request;
(e) immediately notify each seller under such registration statement
and each underwriter, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any
event as a result of which the prospectus contained in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing;
(f) use its best efforts (if the offering is underwritten) to
furnish, at the request of any seller, on the date that Restricted Stock is
delivered to the underwriters for sale pursuant to such registration:
(i) an opinion dated such date of counsel representing FIserv for the
purposes of such registration, addressed to the underwriters and to such
seller, stating that such registration statement has become effective under
the Securities Act and that (A) to the best knowledge of such counsel, no
stop order suspending the effectiveness thereof has been issued and no
proceedings for that purpose have been instituted or are pending or con-
templated under the Securities Act, (B) the registration statement, the
related prospectus, and each amendment or supplement thereof, comply as to
form in all material respects with the requirements of the Securities Act
and the applicable rules and regulations of the Commission thereunder
(except that such counsel need express no opinion as to financial
statements contained therein) and (C) to such other effects as may
reasonably be requested by counsel for the underwriters or by such seller
or its counsel, and (ii) a letter dated such date from the independent
public accountants retained by FIserv, addressed to the underwriters and to
such seller, stating that they are independent public accountants within
the meaning of the Securities Act and that, in the opinion of such
accountants, the financial statements of FIserv included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as
to the period ending no more than five business days prior to the date of
such letter) with respect to the registration in respect of which such
letter is being given as such underwriters or seller may reasonably
request; and
(g) make available for inspection by each seller, any underwriter
participating in any distribution pursuant to such registration statement,
and any attorney, accountant or other agent retained by such seller or
underwriter, all financial and other records, pertinent corporate documents
and properties of FIserv, and cause FIserv's officers, directors and
employees to supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with such
registration statement and permit such seller, attorney, accountant or
agent to participate in the preparation of such registration statement.
For purposes of paragraphs (a) and (b) above and of Section 4(c) hereof, the
period of distribution of Restricted Stock in a firm commitment underwritten
public offering shall be deemed to extend until each underwriter has completed
the distribution of all securities purchased by it, and the period of
distribution of Restricted Stock in any other registration shall be deemed to
extend until the earlier of the sale of all Restricted Stock covered thereby or
nine months after the effective date thereof.
In connection with each registration hereunder, the selling holders of
Restricted Stock will furnish to FIserv in writing such information with respect
to themselves and the proposed distribution by them as shall be reasonably
necessary in order to assure compliance with federal and applicable state
securities laws.
In connection with each registration pursuant to Sections 4 and 5
hereof covering an underwritten public offering, FIserv agrees to enter into a
written agreement with the managing underwriter selected in the manner herein
provided in such form and containing such provisions as are customary in the
securities business for such an arrangement between major underwriters and
companies of FIserv's size and investment stature; provided, however, that such
agreement shall not contain any such provision applicable to FIserv which is
inconsistent with the provisions hereof and provided, further, however, that the
time and place of the closing under said agreement shall be as mutually agreed
upon among FIserv, such managing underwriter and the selling holders of
Restricted Stock.
7. Expenses. All expenses incurred by FIserv in complying with
Sections 4 and 5 hereof, including, without limitation, all registration and
filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for FIserv, fees of the National Association of
Securities Dealers, Inc., transfer taxes, fees of transfer agents and registrars
and reasonable fees and expenses of counsel for the sellers of Restricted Stock,
but excluding any Selling Expenses, are herein called "Registration Expenses".
All underwriting discounts and selling commissions applicable to the sale of
Restricted Stock are herein called "Selling Expenses".
FIserv will pay all Registration Expenses in connection with each
registration statement filed pursuant to Section 4 or 5 hereof. All Selling
Expenses in connection with any registration statement filed pursuant to
Section 4 or 5 hereof shall be borne by the participating sellers in proportion
to the number of shares sold by each, provided, however, that if the sale of
Restricted Stock hereunder shall be effected in a firm commitment underwritten
public offering, then FIserv and such sellers shall share equally any Selling
Expenses incurred in connection with such firm commitment underwritten public
offering, and provided, further, however, that if the sale of Restricted Stock
hereunder shall be effected in a firm commitment underwritten public offering
that shall occur because the sellers of Restricted Stock were unable to dispose
of their Restricted Stock pursuant to any registration statement of FIserv
effected pursuant to Section 3.07 of the Stock Purchase Agreement, as that
registration statement may be amended from time to time, or in another
equivalent manner, then FIserv shall pay all Selling Expenses incurred by such
sellers. In addition, except as contemplated herein FIserv shall pay any
additional out-of-pocket expenses incurred by any sellers of Restricted Stock
that may result because such sellers did not receive fully registered shares of
Common Stock from FIserv pursuant to the Stock Purchase Agreement.
8. Indemnification. In the event of a registration of any of the
Restricted Stock under the Securities Act pursuant to Section 4 or 5 hereof,
FIserv will indemnify and hold harmless each seller of such Restricted Stock
thereunder and each underwriter of Restricted Stock thereunder and each other
person, if any, who controls such seller or underwriter within the meaning of
the Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such seller or underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such Restricted Stock was
registered under the Securities Act pursuant to Section 4 or 5, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each such seller, each
such underwriter and each such controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that FIserv will not be liable in any such case if and to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made in
conformity with information furnished by such seller, such underwriter or such
controlling person in writing specifically for use in such registration
statement or prospectus.
In the event of a registration of any of the Restricted Stock under
the Securities Act pursuant to Section 4 or 5 hereof, each seller of such
Restricted Stock thereunder, severally and not jointly, will indemnify and hold
harmless FIserv and each person, if any, who controls FIserv within the meaning
of the Securities Act, each officer of FIserv who signs the registration
statement, each director of FIserv, each underwriter and each person who
controls any underwriter within the meaning of the Securities Act, against all
losses, claims, damages or liabilities, joint or several, to which FIserv or
such officer or director or underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in the registration statement under which such Restricted Stock was registered
under the Securities Act pursuant to Section 4 or 5, any preliminary prospectus
or final prospectus contained therein, or any amendment or supplement thereof,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse FIserv and each such
officer, director, underwriter and controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that such seller will be liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information pertaining to
such seller, as such, furnished in writing to FIserv by such seller specifically
for use in such registration statement or prospectus; provided, further,
however, that the liability of each seller hereunder shall be limited to the
proportion of any such loss, claim, damage, liability or expense which is equal
to the proportion that the public offering price of shares sold by such seller
under such registration statement bears to the total public offering price of
all securities sold thereunder, but not to exceed the proceeds received by such
seller from the sale of Restricted Stock covered by such registration statement.
Promptly after receipt by an indemnified party hereunder of notice of
the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party other than under this Section 8. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel satisfactory to such indemnified
party, and, after notice from the indemnifying party to such indemnified party
of its election so to assume and undertake the defense thereof, the indemnifying
party shall not be liable to such indemnified party under this Section 8 for any
legal expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation and of
liaison with counsel so selected; provided, however, that, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
reasonable defenses available to it which are different from or additional to
those available to the indemnifying party, or if the interests of the
indemnified party reasonably may be deemed to conflict with the interests of the
indemnifying party, the indemnified party shall have the right to select a
separate counsel and to assume such legal defenses and otherwise to participate
in the defense of such action, with the expenses and fees of such separate
counsel and other expenses related to such participation to be reimbursed by the
indemnifying party as incurred.
Notwithstanding the foregoing, any indemnified party shall have the
right to retain its own counsel in any such action, but the fees and
disbursements of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party shall have failed to retain counsel for the
indemnified person as aforesaid or (ii) the indemnifying party and such
indemnified party shall have mutually agreed to the retention of such counsel.
It is understood that the indemnifying party shall not, in connection with any
action or related actions in the same jurisdiction, be liable for the fees and
disbursements of more than one separate firm qualified in such jurisdiction to
act as counsel for the indemnified party. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in the first two paragraphs of
this Section 8 is unavailable or insufficient to hold harmless an indemnified
party under such paragraphs in respect of any losses, claims, damages or
liabilities or actions in respect thereof referred to therein, then each
indemnifying party shall in lieu of indemnifying such indemnified party con-
tribute to the amount paid or payable by such indemnified party as a result of
such losses, claims, damages, liabilities or actions in such proportion as
appropriate to reflect the relative fault of FIserv, on the one hand, and the
underwriters and the sellers of such Restricted Stock, on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or actions, as well as any other relevant equitable
considerations, including the failure to give any notice under the third
paragraph of this Section 8. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact relates to information supplied by FIserv, on the one hand,
or the underwriters and the sellers of such Restricted Stock, on the other, and
to the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. FIserv and each
of you agree that it would not be just and equitable if contributions pursuant
to this paragraph were determined by pro rata allocation (even if all of the
sellers of such Restricted Stock were treated as one entity for such purpose) or
by any other method of allocation which did not take account of the equitable
considerations referred to above in this paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
or action in respect thereof, referred to above in this paragraph, shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this paragraph, no seller hereunder
shall be required to contribute any amount in excess of the lesser of (i) the
proportion that the public offering price of shares sold by such seller under
such registration statement bears to the total public offering price of all
securities sold thereunder, but not to exceed the proceeds received by such
seller for the sale of Restricted Stock covered by such registration statement
and (ii) the amount of any damages which they would have otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission. No
person guilty of fraudulent misrepresentations (within the meaning of Section
11(f) of the Securities Act), shall be entitled to contribution from any person
who is not guilty of such fraudulent misrepresentation.
The indemnification of underwriters provided for in this Section 8
shall be on such other terms and conditions as are at the time customary and
reasonably required by such underwriters. In that event the indemnification of
the sellers of Restricted Stock in such underwriting shall at the sellers'
request be modified to conform to such terms and conditions.
9. Changes in Common Stock. If, and as often as, there are any
changes in the Common Stock by way of stock split, stock dividend, combination
or reclassification, or through merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof, as may be required, so that the rights and privileges
granted hereby shall continue with respect to the Common Stock as so changed.
10. Rule 144 Reporting. FIserv agrees with you as follows:
(a) FIserv shall make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act.
(b) FIserv shall file with the Commission in a timely manner all
reports and other documents as the Commission may prescribe under Section
13(a) or 15(d) of the Exchange Act.
(c) FIserv shall furnish to such holder of Restricted Stock forthwith
upon request (i) a written statement by FIserv as to its compliance with
the reporting requirements of Rule 144, and of the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements), (ii) a copy of the most recent annual or quarterly report of
FIserv, and (iii) such other reports and documents so filed as a holder may
reasonably request to avail itself of any rule or regulation of the
Commission allowing a holder of Restricted Stock to sell any such
securities without registration.
11. Miscellaneous.
(a) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto whether so
expressed or not. Without limiting the generality of the foregoing, the
registration rights conferred herein on the holders of Restricted Stock
shall inure to the benefit of any and all subsequent holders from time to
time of the Restricted Stock for so long as the certificates representing
the Restricted Stock shall be required to bear the legend specified in Sec-
tion 2 hereof.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by first class registered
mail, postage prepaid, addressed as follows:
if to FIserv, to it at: P.O. Box 979, Brookfield, WI 53008-0979,
Attention: Kenneth R. Jensen;
if to any holder of Restricted Stock, at their addresses as set forth
in Annex I hereto; and
if to any subsequent holder of Restricted Stock to it at such address
as may have been furnished to FIserv in writing by such holder;
or, in any case, at such other address or addresses as shall have been
furnished in writing to FIserv (in the case of a holder of Restricted
Stock) or to the holders of Restricted Stock (in the case of FIserv).
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of Wisconsin.
(d) This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof and may not be modified or amen-
ded except in writing.
(e) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Please indicate your acceptance of the foregoing by signing and
returning the enclosed counterpart of this letter, whereupon this letter (herein
sometimes called "this Agreement") shall be a binding agreement between FIserv
and you.
Very truly yours,
FISERV, INC.
By _____________________
Title:
AGREED TO AND ACCEPTED
as of the date first
above written.
Donald F. Dillon
Dale M. Jensen
Patrick F. Kerrigan
ANNEX I
NAMES AND ADDRESSES OF STOCKHOLDERS
Donald F. Dillon
6600 South 56th Street
Lincoln, NE 68516
Dale M. Jensen
2417 Ridge Road
Lincoln, NE 68512
Patrick J. Kerrigan
7900 South 14th Street
Lincoln, NE 68512
<PAGE>
EXHIBIT B
FORM OF OPINION FOR THE COMPANY AND STOCKHOLDERS
, 1995
FIserv, Inc.
255 FIserv Drive
Brookfield, WI 53045
Dear Sirs:
We have acted as counsel to Information Technology, Inc., a Nebraska
corporation (the "Company"), and the stockholders of the Company (the "Sellers")
in connection with the Stock Purchase Agreement dated as of April 6, 1995 (the
"Agreement") among FIserv, Inc., a Wisconsin corporation ("FIserv"), the Sellers
and the Company. All capitalized terms used herein and not defined herein have
the meanings assigned to them in the Agreement.
In that connection, we have examined such documents and have reviewed
such questions of law as we have considered necessary and appropriate for the
purposes of this opinion. In rendering this opinion, we have assumed the
authenticity of all documents submitted as originals, the genuineness of all
signatures and the conformity to authentic originals of all documents submitted
as copies. As to questions of fact material to this opinion, we have relied
upon representations of officers of the Company and the Sellers and of public
officials (including without limitation those certificates delivered to parties
at the Closing Date).
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Nebraska, has corporate power
and authority to own all of its properties and assets and to carry on its busi-
ness as it is now being conducted, and is duly qualified to do business and is
in good standing in each other jurisdiction as set forth in the Disclosure
Schedule.
2. The authorized capital stock of the Company consists of 20,000
shares of Company Common Stock of which as of the date hereof 20,000 shares of
Company Common Stock are validly issued and outstanding, fully paid and nonas-
sessable, all of which are held of record by the Sellers and no shares of
Company Common Stock are in the treasury of the Company. As of the date hereof,
to our knowledge, the Company has no commitments to issue or sell any shares of
its capital stock or any securities or obligations convertible into or
exchangeable for, or giving any person any right to subscribe for or acquire
from the Company, any shares of its capital stock and no securities or
obligations evidencing any such rights are outstanding. The Company has
effectively waived the provisions of Article VIII of the Articles of
Incorporation of the Company.
3. The Company has the corporate power and authority to execute and
deliver the Agreement and to consummate the transactions contemplated on the
part of the Company thereby. The execution and delivery by the Company of the
Agreement and the consummation by the Company of the transactions contemplated
thereby have been duly authorized by its Board of Directors. No other corporate
proceedings on the part of the Company are necessary to authorize the execution
and delivery of the Agreement by the Company or the consummation by the Company
of the transactions contemplated thereby. The Agreement has been duly executed
and delivered by the Company and, assuming the due authorization, execution and
delivery of the Agreement by FIserv, is a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except as
such enforcement is subject to the effect of (i) any applicable bankruptcy,
insolvency, reorganization or similar laws relating to or affecting creditors'
rights generally, and (ii) general principles of equity, including concepts of
materiality, reasonableness, good faith and fair dealing, and other similar
doctrines affecting the enforceability of agreements generally (regardless of
whether considered in a proceeding in equity or at law).
4. The execution and delivery of the Agreement by the Company do not
and the consummation by the Company of the transactions contemplated thereby
will not (i) violate any provision of the Articles of Incorporation or By-Laws
of the Company, or (ii) to our knowledge, (a) violate, or result, with the
giving of notice or the lapse of time or both, in a violation of, any provision
of, or result in the acceleration of or entitle any party to accelerate (whether
after the giving of notice or lapse of time or both) any obligation under, or
result in the creation or imposition of any material lien, charge, pledge,
security interest or other encumbrance upon any of the property of the Company
pursuant to any provision of, any material mortgage, lien, lease, agreement,
license, instrument, order, arbitration award, judgment or decree to which the
Company is a party or by which any of its assets is bound, (b) violate or
conflict with any other material restriction of any kind or character to which
the Company is subject or by which any of its assets may be bound, or (c)
constitute an event permitting termination of any such material mortgage, lien,
lease, agreement, license or instrument to which the Company is a party or (iii)
to our knowledge, violate any law, ordinance or regulation to which the Company
is subject.
5. Except for filings and satisfaction of the waiting period
requirements under the HSR Act that have been made and satisfied, no consent,
authorization, order or approval of, or filing or registration with, any
governmental commission, board or other regulatory body is required for the
execution and delivery of the Agreement by the Company and the consummation by
the Company of the transactions contemplated thereby.
6. To our knowledge, there are no actions, suits or proceedings with
respect to the business of the Company pending against the Company at law or in
equity, or before or by any federal, state, municipal, foreign or other gov-
ernmental department, commission, board, bureau, agency or instrumentality, nor,
to our knowledge, has the Company received any notice of any such actions, suits
or proceedings with respect to the business of the Company.
7. To our knowledge, each Seller is an individual competent to own
his properties and assets and to carry on his affairs as they are now being
conducted.
8. To our knowledge, each Seller has the power and authority to
execute and deliver the Agreement and the Registration Rights Agreement and to
consummate the transactions contemplated on the part of each Seller thereby. No
other legally required proceedings on the part of each Seller are necessary to
authorize the execution and delivery of the Agreement and the Registration
Rights Agreement by each Seller party thereto or the consummation by each Seller
of the transactions contemplated thereby. The Agreement and the Registration
Rights Agreement have been duly executed and delivered by each Seller, if a
party thereto, and, assuming the due authorization, execution and delivery of
the Agreement and the Registration Rights Agreement by FIserv, are valid and
binding agreements of each Seller, enforceable against such Seller in accordance
with their respective terms, except as such enforcement is subject to the effect
of (i) any applicable bankruptcy, insolvency, reorganization or similar laws
relating to or affecting creditors' rights generally and (ii) general principles
of equity, including concepts of materiality, reasonableness, good faith and
fair dealing, and other similar doctrines affecting the enforceability of
agreements generally (regardless of whether considered in a proceeding in equity
or at law).
9. To our knowledge, the execution and delivery of the Agreement and
the Registration Rights Agreement by each Seller party thereto do not and the
consummation by each Seller party thereto of the transactions contemplated
thereby will not (i) violate, or result, with the giving of notice or the lapse
of time or both, in a violation of, any provision of, or result in the accelera-
tion of or entitle any party to accelerate (whether after the giving of notice
or lapse of time or both) any obligation under any mortgage, lien, lease, agree-
ment, license, instrument, law, ordinance, regulation, order, arbitration award,
judgment or decree to which such Seller is a party or by which any of his assets
are bound and do not and will not violate or conflict with any other restriction
of any kind or character to which such Seller is subject or by which any of his
assets may be bound, and the same does not and will not constitute an event
permitting termination of any mortgage, lien, lease, agreement, license or
instrument to which such Seller is a party, or (ii) violate any law, ordinance
or regulation to which such Seller is subject, except, in each case or cases,
for any such violation, acceleration, creation, imposition, conflict or termi-
nation which would not prevent the consummation of the transactions contemplated
thereby.
10. Except for filings and satisfaction of the waiting period
requirements under the HSR Act that have been made and satisfied, no consent,
authorization, order or approval of, or filing or registration with, any govern-
mental commission, board or other regulatory body is required for or in connec-
tion with the execution and delivery of the Agreement and the Registration
Rights Agreement and the consummation by each Seller of the transactions contem-
plated thereby.
11. Each Seller is the lawful owner of the shares of Company Common
Stock set forth opposite his name on Annex I to the Agreement, free and clear of
all liens, charges, encumbrances and claims whatsoever as may have been created
by or relate to such Seller other than such restrictions as generally arise
under applicable securities laws, and, assuming that FIserv is a bona fide
purchaser, the sale, transfer and delivery of said Shares to FIserv pursuant to
the provisions of the Agreement will transfer to FIserv valid title thereto,
free and clear of all liens, charges, encumbrances and claims whatsoever as may
have been created by or relate to Seller. Each Seller has effectively waived the
provisions of Article VIII of the Articles of Incorporation of the Company.
This opinion is for your use solely in connection with the
consummation of the transactions contemplated by the Agreement and may not be
used for any other purpose or by any other person without our prior written
consent, and is limited to the Federal laws of the United States of America and
the laws of the State of Nebraska. For purposes of that portion of paragraph 3
of this opinion that relates to the enforceability of the Registration Rights
Agreement, I have assumed that the laws of the State of Wisconsin are the same
as those of the State of Nebraska.
Very truly yours,
Kinsey Ridenour Becker & Kistler
<PAGE>
EXHIBIT C
Consents Required as Condition to Closing
NONE.
<PAGE>
EXHIBIT D
FORM OF OPINION FOR FISERV
, 1995
The Stockholders Named in Annex I to
the Stock Purchase Agreement dated as of
April 6, 1995 among FIserv, Inc.,
The Stockholders Named in Annex I Thereto and
Information Technology, Inc.
1345 Old Cheney Road
Lincoln, NE 68512
Dear Sirs:
I have acted as counsel to FIserv, Inc., a Wisconsin
corporation ("FIserv"), in connection with a Stock Purchase Agreement
dated as of April 6, 1995 (the "Agreement") among FIserv, The
Stockholders Named in Annex I Thereto (the "Sellers") and Information
Technology, Inc., a Nebraska corporation (the "Company"). All
capitalized terms used herein and not defined herein have the meanings
assigned to them in the Agreement.
In that connection, I have examined such documents and have
reviewed such questions of law as I have considered necessary and
appropriate for the purposes of this opinion. In rendering this
opinion, I have assumed the authenticity of all documents submitted as
originals, the genuineness of all signatures and the conformity to
authentic originals of all documents submitted as copies. As to
questions of fact material to this opinion, I have relied upon
representations of officers of FIserv and of public officials
(including without limitation those certificates delivered to parties
at the Closing Date).
Based upon the foregoing, I am of the opinion that:
1. FIserv is a corporation duly organized, validly existing
and in good standing under the laws of the State of Wisconsin and has
corporate power and authority to own its properties and assets and to
carry on its business as it is now being conducted.
2. FIserv has the corporate power and authority to execute
and deliver the Agreement and the Registration Rights Agreement and to
consummate the transactions contemplated on its part thereby. The
execution and delivery by FIserv of the Agreement and the Registration
Rights Agreement and the consummation by FIserv of the transactions
contemplated on its part thereby have been duly authorized by the
Board of Directors. No other corporate proceedings on the part of
FIserv are necessary to authorize the execution and delivery of the
Agreement and the Registration Rights Agreement by FIserv or the
consummation by FIserv of the transactions contemplated thereby. The
Agreement and the Registration Rights Agreement have been duly
executed and delivered by FIserv and, assuming the due authorization,
execution and delivery of the Agreement and the Registration Rights
Agreement by the other parties thereto, are its valid and binding
agreements, enforceable against FIserv in accordance with their
respective terms, except as such enforcement is subject to the effect
of (i) any applicable bankruptcy, insolvency, reorganization or
similar laws relating to or affecting creditors' rights generally and
(ii) general principles of equity, including, without limitation, con-
cepts of materiality, reasonableness, good faith and fair dealing, and
other similar doctrines affecting the enforceability of agreements
generally (regardless of whether considered in a proceeding in equity
or at law).
3. The execution and delivery of the Agreement and the
Registration Rights Agreement by FIserv do not, and the consummation
by FIserv of the transactions contemplated thereby will not, (i) vio-
late any provision of the Articles of Incorporation or By-Laws of
FIserv, or (ii), to my knowledge, (a) violate, or result, with the
giving of notice or the lapse of time or both, in a violation of, any
provision of, or result in the acceleration of or entitle any party to
accelerate (whether after the giving of notice or lapse of time or
both) any obligation under, or result in the creation or imposition of
any material lien, charge, pledge, security interest or other encum-
brance upon any of the property of FIserv pursuant to any provision
of, any material mortgage, lien, lease, agreement, license, instru-
ment, order, arbitration award, judgment or decree to which FIserv is
a party or by which any of its assets are bound, (b) violate or
conflict with any other material restriction of any kind or character
to which FIserv is subject or by which any of its assets may be bound,
or (c) constitute an event permitting termination of any such material
mortgage, lien, lease, agreement, license or instrument to which
FIserv is a party or (iii), to my knowledge, violate in any material
respect any law, ordinance or regulation to which FIserv is subject,
except, in each case or cases, for any such violation, acceleration,
creation, imposition, conflict or termination which would not prevent
the consummation of the transactions contemplated hereby by FIserv.
4. Except for filings and satisfaction of the waiting
period requirements under the HSR Act that have been made and
satisfied, no consent, authorization, order or approval of, or filing
or registration with, any governmental commission, board or other
regulatory body is required for or in connection with the execution
and delivery of this Agreement and the Registration Rights Agreement
by FIserv and the consummation by FIserv of the transactions contem-
plated thereby.
5. The authorized capital stock of FIserv consists of
75,000,000 shares of FIserv Common Stock, of which [39,325,998] shares
are validly issued and outstanding, fully paid and nonassessable.
Except pursuant to FIserv's employee stock option and restricted stock
purchase plans and except as set forth in Schedule 2.03(f) to the
Agreement, as of the date hereof, FIserv has no commitments to issue
or sell any of its capital stock or any securities or obligations
convertible into or exchangeable for, or giving any person any right
to subscribe for or acquire from FIserv, any shares of its capital
stock and no securities or obligations evidencing such rights are
outstanding.
6. The shares of FIserv Common Stock to be issued to the
Principal Stockholders as consideration in accordance with Section
1.04 of the Agreement are validly issued and outstanding, fully paid
and nonassessable shares of FIserv Common Stock.
This opinion is limited to the Federal laws of the United
States of America and the laws of the State of Wisconsin. For
purposes of that portion of paragraph 2 of this opinion that relates
to the enforceability of the Agreement, I have assumed that the laws
of the State of Nebraska are the same as those of the State of
Wisconsin.
Very truly yours,
Charles W. Sprague
Executive Vice President,
General Counsel and Secretary
<PAGE>
April 18, 1995
FIserv, Inc.
255 FIserv Drive
Brookfield, WI 53045
FIserv, Inc.
Registration Statement on Form S-3
Dear Sirs:
I have acted as counsel to FIserv, Inc., a Wisconsin
corporation ("FIserv"), in connection with its Registration
Statement on Form S-3 (the "Registration Statement"), filed under
the Securities Act of 1933 (the "Act"), relating to the proposed
resales of up to 1,033,900 shares of its Common Stock, $.01 par
value (the "Shares"), by certain Selling Stockholders following
consummation of the proposed acquisition (the "Acquisition") by
FIserv of all the outstanding capital stock of Information
Technology, Inc.
In that connection, I have examined originals, or
copies certified or otherwise identified to our satisfaction of
such documents, corporate records and other instruments as I have
deemed necessary or appropriate for purposes of this opinion,
including the Articles of Incorporation, as amended, and By-Laws,
as amended, of FIserv.
Based upon the foregoing, I am of the opinion that:
1. The Company has been duly organized and is validly
existing as a corporation under the laws of the State of
Wisconsin.
2. The Shares have been duly authorized and, upon
consummation of the Acquisition, will be validly issued and fully
paid and nonassessable.
I hereby consent to the use of this opinion as an
exhibit to the Registration Statement and to the reference to me
under "Legal Matters" in the Prospectus comprising a part of
the Registration Statement. By giving the foregoing consent, I
do not admit that I come within the category of persons whose
consent is required under Section 7 of the Act.
Very truly yours,
CHARLES W. SPRAGUE
Charles W. Sprague
Executive Vice President,
General Counsel and Secretary
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
FIserv, Inc. on Form S-3 of our report dated January 30, 1995, incorporated by
reference in the Annual Report on Form 10-K of FIserv, Inc. for the year ended
December 31, 1994 and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
Deloitte & Touche LLP
Milwaukee, Wisconsin
April 18, 1995
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints Kenneth R. Jensen as his true and lawful
attorney-in-fact and agent, with full power of substitution, for him
and in his name, place and stead, in any and all capacities, to sign
the Registration Statement on Form S-3 covering Common Stock of
FIserv, Inc., any or all amendments or post-effective amendments to
such Registration Statement, and to file the same, with all exhibits
thereto, and other documents therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute, may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 11 day of April, 1995.
GEORGE D. DALTON
---------------------------
George D. Dalton
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints Kenneth R. Jensen as his true and lawful
attorney-in-fact and agent, with full power of substitution, for him
and in his name, place and stead, in any and all capacities, to sign
the Registration Statement on Form S-3 covering Common Stock of
FIserv, Inc., any or all amendments or post-effective amendments to
such Registration Statement, and to file the same, with all exhibits
thereto, and other documents therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute, may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 11 day of April, 1995.
LESLIE M. MUMA
---------------------------
Leslie M. Muma
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints Kenneth R. Jensen as his true and lawful
attorney-in-fact and agent, with full power of substitution, for him
and in his name, place and stead, in any and all capacities, to sign
the Registration Statement on Form S-3 covering Common Stock of
FIserv, Inc., any or all amendments or post-effective amendments to
such Registration Statement, and to file the same, with all exhibits
thereto, and other documents therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute, may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 11 day of April, 1995.
BRUCE K. ANDERSON
---------------------------
Bruce K. Anderson
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints Kenneth R. Jensen as his true and lawful
attorney-in-fact and agent, with full power of substitution, for him
and in his name, place and stead, in any and all capacities, to sign
the Registration Statement on Form S-3 covering Common Stock of
FIserv, Inc., any or all amendments or post-effective amendments to
such Registration Statement, and to file the same, with all exhibits
thereto, and other documents therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute, may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 11 day of April, 1995.
KENNETH R. JENSEN
---------------------------
Kenneth R. Jensen
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints Kenneth R. Jensen as his true and lawful
attorney-in-fact and agent, with full power of substitution, for him
and in his name, place and stead, in any and all capacities, to sign
the Registration Statement on Form S-3 covering Common Stock of
FIserv, Inc., any or all amendments or post-effective amendments to
such Registration Statement, and to file the same, with all exhibits
thereto, and other documents therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute, may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 11 day of April, 1995.
GERALD J. LEVY
---------------------------
Gerald J. Levy
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints Kenneth R. Jensen as his true and lawful
attorney-in-fact and agent, with full power of substitution, for him
and in his name, place and stead, in any and all capacities, to sign
the Registration Statement on Form S-3 covering Common Stock of
FIserv, Inc., any or all amendments or post-effective amendments to
such Registration Statement, and to file the same, with all exhibits
thereto, and other documents therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute, may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 7 day of April, 1995.
ROLAND D. SULLIVAN
---------------------------
Roland D. Sullivan
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints Kenneth R. Jensen as his true and lawful
attorney-in-fact and agent, with full power of substitution, for him
and in his name, place and stead, in any and all capacities, to sign
the Registration Statement on Form S-3 covering Common Stock of
FIserv, Inc., any or all amendments or post-effective amendments to
such Registration Statement, and to file the same, with all exhibits
thereto, and other documents therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute, may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 11 day of April, 1995.
WILLIAM L. SEIDMAN
---------------------------
William L. Seidman
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints Kenneth R. Jensen as his true and lawful
attorney-in-fact and agent, with full power of substitution, for him
and in his name, place and stead, in any and all capacities, to sign
the Registration Statement on Form S-3 covering Common Stock of
FIserv, Inc., any or all amendments or post-effective amendments to
such Registration Statement, and to file the same, with all exhibits
thereto, and other documents therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute, may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 11 day of April, 1995.
THEKLA R. SHACKELFORD
---------------------------
Thekla R. Shackelford
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THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM FORM 10-K
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