SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FISERV, INC.
(Exact name of Registrant as specified in its charter)
WISCONSIN 39-1506125
(State or other jurisdiction of (IRS Employer Identification Number)
incorporation or organization)
255 FISERV DRIVE
BROOKFIELD, WISCONSIN 53045
(262) 879-5000
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive office)
FISERV, INC. EMPLOYEE STOCK
PURCHASE PLAN
(Full title of plan)
KENNETH R. JENSEN
SENIOR EXECUTIVE VICE PRESIDENT
FISERV, INC.
255 FISERV DRIVE
BROOKFIELD, WISCONSIN 53045
TELEPHONE: (262) 879-5000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Offering Aggregate Amount of
Securities to Amount to be Price Per Offering Registration
BE REGISTERED (1) REGISTERED (2) SHARE (3) PRICE (3) FEE
- ------------- ----------- ------ ------ ---
<S> <C> <C> <C> <C>
Common Stock, 800,000 $30.125 $24,100,000 $6,699.80
$.01 par value shares
- -------------- ----------- ---------- ----------- ---------
</TABLE>
(1) Pursuant to Instruction F of Form S-8 and Rule 416(c), there are hereby
registered an indeterminate amount of interests in the Employee Stock
Purchase Plan. Pursuant to Rule 457(h)(2), no separate fee is required with
respect to the interests in the Employee Stock Purchase Plan.
(2) The number of shares of Common Stock to be registered may be adjusted in
accordance with the provisions of the Plan in the event that, during the
period the Plan is in effect, the number of shares of Common Stock are
increased or decreased or changed into or exchanged for a different number
or kind of shares of stock or other securities of the Company through
reorganization, merger or consolidation, recapitalization, stock split,
split-up, combination, exchange of shares, declaration of any Common Stock
dividends or similar events without receipt of consideration by the
Company. Accordingly, this Registration Statement covers, in addition to
the number of shares of Common Stock stated above, an indeterminate number
of shares which by reason of any such events may be issued in accordance
with the provisions of the Plan.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933 and based upon the
average of the high and low sales prices for the Common Shares as reported
on the Nasdaq National Market System on October 25, 1999.
<PAGE>
PART II
Information Required in the Registration Statement
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Fiserv, Inc. ("Fiserv" or the "Company") and the Fiserv, Inc. Employee
Stock Purchase Plan (the "Plan") hereby incorporate by reference in this
Registration Statement the following documents that have been filed with the
Securities and Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 as filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934 (the "Exchange Act");
(b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by
the annual report referred to in (a) above; and
(c) The description of the Company's common stock contained in the
Company's registration statement filed with the Commission under
Section 12 of the Exchange Act, including any amendment or report
filed for the purpose of updating that description.
All documents subsequently filed by the Company and the Plan with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act, prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold, shall be deemed to
be incorporated by reference in this Registration Statement and to be a
part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters in connection with the securities registered under
this Registration Statement will be passed upon by Charles W. Sprague, Esq.,
Executive Vice President, General Counsel and Secretary of the Company. Mr.
Sprague beneficially owns 80,090 shares of Fiserv Common Stock, which number
includes vested but unexercised stock options.
ITEM 6. 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 the court 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.
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 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
shareholders, by law or otherwise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
The following exhibits are filed with this registration statement:
Exhibit
NUMBER DESCRIPTION
- ------ -----------
4.1 Fiserv, Inc. Employee Stock Purchase Plan
5.1 Opinion and consent of Charles W. Sprague, Esq.,Executive
Vice President, General Counsel and Secretary of the
Registrant as to the legality of the Common Stock being
Registered
23.1 Consent of Deloitte & Touche LLP, Independent Auditors
23.2 Consent of PricewaterhouseCoopers LLP, Independent Auditors
23.3 Consent of Charles W. Sprague, Esq. is contained in his
opinion filed as Exhibit 5.1 to this Registration Statement
24 Powers of Attorney of Leslie M. Muma, Donald F. Dillon,
George D. Dalton, Thomas P. Gerrity, L. William Seidman,
Gerald J. Levy and Thekla R. Shackelford.
ITEM 9. UNDERTAKINGS
(A) RULE 415 OFFERING
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement; (iii) 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
registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section
do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment 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.
(3) 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.
(B) INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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.
(C) INDEMNIFICATION FOR LIABILITIES ARISING UNDER THE SECURITIES ACT OF
1933
Insofar as indemnification for liabilities arising under the Securities Act of
1933 (the "Act") may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, 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.
<PAGE>
SIGNATURES
Pursuant to the requirement 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-8 and had 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 October 25, 1999.
FISERV, INC.
BY: /S/KENNETH 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:
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<CAPTION>
<S> <C> <C>
* Vice Chairman, Chief Executive Officer, October 25, 1999
- ------------------------ President and Director
(Leslie M. Muma) (Principal Executive Officer)
/S/KENNETH R. JENSEN Senior Executive Vice President, October 25, 1999
- ------------------------ Treasurer and Director (Principal
(Kenneth R. Jensen) Financial and Accounting Officer)
* Vice Chairman and Director October 25, 1999
- ------------------------
(Donald F. Dillon)
* Chairman of the Board and Director October 25, 1999
- ------------------------
(George D. Dalton)
* Director October 25, 1999
- ------------------------
(Thomas P. Gerrity)
* Director October 25, 1999
- ------------------------
(Gerald J. Levy)
* Director October 25, 1999
- ------------------------
(L. William Seidman)
* Director October 25, 1999
- ------------------------
(Thekla R. Shackelford)
</TABLE>
*BY: /S/KENNETH R. JENSEN
- -----------------------------
(Kenneth R. Jensen, individually and as
attorney-in-fact for the persons indicated)
THE PLAN. Pursuant to the Securities Act of 1933, the Fiserv, Inc. Employee
Stock Purchase Plan Committee, which administers the Plan, has duly caused this
registration statement to be signed on behalf of the Plan, thereunto duly
authorized in the City of Brookfield, State of Wisconsin, on October 25, 1999.
FISERV, INC. EMPLOYEE STOCK PURCHASE PLAN COMMITTEE
BY: /S/JACK P. BUCALO
-----------------
Name: Jack P. Bucalo
Title: Member of the Fiserv, Inc. Employee Stock
Purchase Plan Committee
<PAGE>
EXHIBIT INDEX
Exhibit
NUMBER DESCRIPTION
------ -----------
4.1 Fiserv, Inc. Employee Stock Purchase Plan
5.1 Opinion and consent of Charles W. Sprague, Esq.,
Executive Vice President, General Counsel
and Secretary of the Registrant as to the
legality of the Common Stock being Registered
23.1 Consent of Deloitte & Touche LLP, Independent Auditors
23.2 Consent of PricewaterhouseCoopers LLP, Independent Auditors
23.3 Consent of Charles W. Sprague, Esq. is contained in his
opinion filed as Exhibit 5.1 to this Registration Statement
24 Powers of Attorney of Leslie M. Muma, Donald F. Dillon,
George D. Dalton, Thomas P. Gerrity, L. William Seidman,
Gerald J. Levy and Thekla R. Shackelford.
FISERV, INC. EMPLOYEE STOCK PURCHASE PLAN
FISERV, INC.
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE.
The purpose of the Plan is to provide employees of Fiserv and its
Designated Subsidiaries with an opportunity to purchase Common Stock of Fiserv
through accumulated payroll deductions. It is the intention of Fiserv to have
the Plan qualify as an "Employee Stock Purchase Plan" under Section 423 of the
Internal Revenue Code of 1986, as amended. The provisions of the Plan,
accordingly, shall be construed so as to extend and limit participation in a
manner consistent with the requirements of that section of the Code.
The Plan was approved by the Board of Directors of Fiserv and will be
effective on January 1, 2000. The Plan will not be presented for approval by the
Fiserv shareholders until the annual shareholder meeting to be held in March,
2000. If the Fiserv shareholders do not approve the Plan, any amounts deducted
from participant payroll checks will be refunded to the Plan participants and
the Plan will terminate.
2. DEFINITIONS.
a. "BOARD" shall mean (i) the Board of Directors of Fiserv or (ii) if and
to the extent that the Board has appointed a committee, whose members need not
be members of the Board of Directors, to exercise some or all of the functions
of the Board hereunder, such committee.
b. "CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time. Reference to a section of the Code shall include that section and
any comparable section or sections of any future legislation that amends,
supplements or supersedes that section.
c. "COMMON STOCK" shall mean the Common Stock of Fiserv.
d. "COMPANY" shall mean Fiserv and any Designated Subsidiary of Fiserv.
Except where the context clearly requires otherwise, any reference to "Company"
in this Plan shall, with respect to a particular Employee, mean the entity by
which he or she is employed.
e. "COMPENSATION" shall mean the total wages, bonuses, commissions, and
overtime pay compensation paid with respect to an Offering Period by the Company
to an Employee for services performed during such Offering Period, including
deferrals described in Sections 415(c)(3)(D) and 132(f)(4) of the Code, but
excluding (i) extra compensation based upon special arrangements; (ii) deferred
compensation; (iii) reimbursed expenses (including, but not limited to, moving
expenses); (iv) expense allowances (including, but not limited to, travel and
entertainment expense allowance); (v) stock options and any gain or income
attributable thereto; (vi) imputed income with respect to any group life
insurance program maintained by the Company on behalf of an Employee; (vii)
referral payments, and (viii) other extra compensation (including, but not
limited to, cash and non-cash fringe benefits).
f. "DESIGNATED SUBSIDIARY" shall mean any Subsidiary that has been
designated by the Board from time to time in its sole discretion as eligible to
participate in the Plan.
g. "EMPLOYEE" shall mean a person employed by the Company on or after
January 1, 2000, whose customary employment with the Company is more than five
(5) months in any calendar year. Notwithstanding the preceding, any leased
employee, as defined in Code Section 414(n)(2), and any individual performing
services for the Employer as an independent contractor or other contract service
provider under the terms of a contract, agreement or other special arrangement
between the Company and the individual, or other third party, that the parties
do not contemplate being an employment relationship, shall not be considered as
an Employee for any purpose under the Plan.
h. "ENROLLMENT DATE" shall mean the first day of each Offering Period.
i. "FAIR MARKET VALUE" shall mean, as of any date, the closing sales price
for a share of Common Stock (or the closing bid, if no sales were reported) as
quoted on such exchange or system for the last market trading day on the date of
such DETERMINATION, AS REPORTED IN THE WALL STREET JOURNAL or such other source
as the Board deems reliable.
j. "FISERV" shall mean Fiserv, Inc., a Wisconsin corporation.
k. "GRANT/EXERCISE DATE" shall mean the last Trading Day of each Offering
Period.
l. "OFFERING PERIOD" shall mean each of the calendar quarters of each year.
The duration of Offering Periods may be changed pursuant to Section 4 of this
Plan.
m. "PLAN" shall mean this Employee Stock Purchase Plan.
n. "PURCHASE PRICE" shall mean an amount equal to 85% of the Fair Market
Value of a share of Common Stock on the Grant/Exercise Date, provided, however,
that the Purchase Price may be adjusted by the Board pursuant to Section 20.
o. "RESERVES" shall mean the number of shares of Common Stock covered by
each option under the Plan which have not yet been exercised and the number of
shares of Common Stock which have been authorized for issuance under the Plan
but not yet placed under option.
p. "SUBSIDIARY" shall mean a domestic or foreign corporation, of which not
less than 50% of the voting shares are held by Fiserv or a Subsidiary, whether
or not that entity now exists or is hereafter organized or acquired by Fiserv or
a Subsidiary.
q. "TRADING DAY" shall mean a day on which national stock exchanges and the
NASDAQ system are open for trading.
3. ELIGIBILITY.
a. Any Employee who is employed by the Company on a given Enrollment Date,
including an Employee who is on an authorized leave of absence of such date,
shall be eligible to participate in the Plan.
b. Any provisions of the Plan to the contrary notwithstanding, no Employee
shall be granted an option under the Plan (i) to the extent that, immediately
after the grant, such Employee (or any other person whose stock would be
attributed to such Employee pursuant to Section 424(d) of the Code) would own
capital stock of Fiserv or of any Subsidiary and/or hold outstanding options to
purchase such stock possessing five percent (5%) or more of the total combined
voting power or value of all classes of the capital stock of Fiserv or of any
Subsidiary, or (ii) to the extent that his or her rights to purchase stock under
all employee stock purchase plans of Fiserv and its subsidiaries accrues at a
rate which exceeds twenty-five thousand dollars ($25,000) worth of stock
(determined at the fair market value of the shares at the time such option is
granted) for each calendar year in which such option is outstanding at any time.
4. OFFERING PERIODS.
The Plan shall be implemented by consecutive Offering Periods with a new
Offering Period commencing on the first day of the calendar quarters of each
year, or on such offer date as the Board shall determine, and continuing
thereafter until terminated in accordance with Section 20 hereof. The Board
shall have the power to change the duration of Offering Periods (including the
commencement dates thereof) with respect to future offerings without stockholder
approval if such change is announced at least five (5) days prior to the
scheduled beginning of the first Offering Period to be affected thereafter.
5. PARTICIPATION.
a. An eligible Employee may become a participant in the Plan by completing
a participation agreement provided by the Company authorizing payroll deductions
and filing it with the Company's payroll office at least ten (10) business days
prior to the applicable Enrollment Date.
b. Payroll deductions for a participant shall commence on the first payroll
following the Enrollment Date and shall end on the last payroll in the Offering
Period to which such authorization is applicable, unless sooner terminated by
the participant as provided in Section 10 hereof.
6. PAYROLL DEDUCTIONS.
a. At the time a participant files his or her participation agreement, he
or she shall elect to have payroll deductions made on each pay day during the
Offering Period in any whole percentage, but not exceeding ten percent (10%) of
the Compensation which he or she receives on each pay day during the Offering
Period. Contributions to the Plan other than by payroll deduction are not
permitted. Unless the Board, in the future, determines otherwise, the maximum
amount that may be deducted from any participant's Compensation for the purpose
of purchasing Common Stock under this Plan shall not exceed twenty-one thousand
two hundred and fifty dollars ($21,250) in any single calendar year. A
participant who is under the age or 21 must have a parent's or guardian's
written permission to participate.
b. A participant may not change the amount of payroll deductions during an
Offering Period, but may change the amount to be deducted for any subsequent
Offering Period by filing notice thereof at least ten (10) business days prior
to the Enrollment Date on which the subsequent Offering Period commences.
c. A participant may discontinue his or her participation in the Plan as
provided in Section 10 hereof, during an Offering Period by completing and
filing with the Company a form provided for such purpose.
d. A participant's participation agreement shall remain in effect for
successive Offering Periods (including any portion of an Offering Period during
which the participant is on an authorized leave of absence, although payroll
deductions will be discontinued for any period for which the participant is not
receiving Compensation), unless terminated prior to an Offering Period as
provided in Section 10 hereof.
e. All payroll deductions made for a participant shall be credited to an
unfunded and unsecured bookkeeping account maintained on behalf of the
participant and deposited with the general funds of the Company
f. Notwithstanding the foregoing, to the extent necessary to comply with
Section 423(b)(8) of the Code and Section 3(b) hereof, a participant's payroll
deductions may be decreased to zero percent (0%) at any time during an Offering
Period. Payroll deductions shall recommence at the rate provided in such
participant's participation agreement for the first Offering Period that has a
Grant/Exercise Date in the following calendar year, unless terminated by the
participant as provided in Section 10 hereof.
g. At the time the option is exercised, in whole or in part, or at the time
some or all the Common Stock issued under the Plan is disposed of, the
participant must make adequate provision for the federal, state or other tax
withholding obligations, if any, that arise upon the exercise of the option or
the disposition of the Common Stock. At any time, the Company may, but shall not
be obligated to, withhold from the participant's compensation the amount
necessary for the Company to meet applicable withholding obligations, including
any withholding required to make available to Fiserv any tax deductions or
benefits attributable to sale or early disposition of Common Stock by the
Employee.
7. GRANT OF OPTION.
On the Grant/Exercise Date of each Offering Period, each eligible Employee
participating in such Offering Period shall be granted an option to purchase on
the Grant/Exercise Date of such Offering Period (at the applicable Purchase
Price) up to a number of shares of the Common Stock determined by dividing such
Employee's accumulated payroll deductions as of the Grant/Exercise Date by the
applicable Purchase Price; provided that in no event shall an Employee be
permitted to purchase during each Offering Period more than two thousand five
hundred (2,500) shares (subject to any adjustment pursuant to Section 19), and
provided further that such purchase shall be subject to the limitations set
forth in Sections 3(b) and 13 hereof. Exercise of the option shall occur as
provided in Section 8 hereof, unless the participant has withdrawn pursuant to
Section 10 hereof. The Option shall expire on the last day of the Offering
Period.
8. EXERCISE OF OPTION.
Unless a participant withdraws from the Plan, at least ten (10) business
days prior to the Grant/Exercise Date, as provided in Section 10 hereof, his or
her option for the purchase of shares shall be exercised automatically on the
Grant/Exercise Date, and the maximum number of shares (including fractional)
shall be purchased for such participant at the applicable Purchase Price with
the accumulated payroll deductions accumulated during the Offering Period.
During a participant's lifetime, a participant's option to purchase shares
hereunder is exercisable only by him or her.
9. DELIVERY.
As soon as administratively practicable following the Grant/Exercise Date,
the shares of Common Stock purchased on behalf of a participant pursuant to the
exercise of his or her option will be credited to an account with a transfer
agent or a securities brokerage firm, as determined by Fiserv, in the name of
the participant. By electing to participate in the Plan, a participant will be
deemed to authorize the establishment of an account in his or her name with the
transfer agent or securities brokerage firm selected by Fiserv. A participant
may request that the transfer agent or securities brokerage firm arrange,
subject to any applicable fee, for the delivery to the participant or an account
designated by the participant of some or all of the Common Stock held in the
participant's account. If the participant desires to sell some or all of his or
her shares of Common Stock held in his or her account, he or she may do so (i)
by disposing of the shares of Common Stock through the transfer agent or
securities brokerage firm, subject to any applicable fee, or (ii) through such
other means as Fiserv may permit.
10. WITHDRAWAL.
a. At any time during an Offering Period, a participant may terminate his
or her payroll deductions under the Plan and withdraw from the Offering Period
by delivering to the Company a notice of withdrawal in such form as the Company
provides. Such withdrawal may be elected at any time, but must be received no
later than ten (10) business days prior to the end of the Offering Period. Upon
withdrawal from the Offering Period by a participant, the Company shall
distribute to such participant all of his or her accumulated payroll deductions
under the Offering Period, without interest, and such participant's interest in
the Offering Period shall be automatically terminated. A participant's
withdrawal from an Offering Period will have no effect on his or her eligibility
to participate in subsequent Offering Periods that commence after the
termination of the Offering Period from which the participant withdraws, but the
participant will be required to deliver a new participation agreement in order
to participate in subsequent Offering Periods under the Plan.
b. A participant's withdrawal from an Offering Period shall not have any
effect upon his or her eligibility to participate in any similar plan, which may
hereafter be adopted by Fiserv.
11. TERMINATION OF EMPLOYMENT; LEAVE OF ABSENCE.
Upon a participant's ceasing to be an Employee for any reason, he or she
shall be deemed to have elected to withdraw from the Plan and his or her payroll
deductions accumulated during the Offering Period but not yet used to exercise
the option shall be returned to such participant or, in the case of his or her
death, to the person or persons entitled thereto under Section 15 hereof, and
such participant's option shall be automatically terminated. The preceding
sentence notwithstanding, a participant who receives payment in lieu of notice
of termination of employment shall be treated as continuing to be an Employee
for the participant's customary number of hours per week of employment during
the period in which the participant is subject to such payment in lieu of
notice. For purposes of this Section 11, a participant will not be deemed to
have terminated employment in the case of any leave of absence approved by the
Company.
12. INTEREST.
No interest shall accrue on the payroll deductions of a participant in the
Plan.
13. STOCK.
a. Subject to adjustment upon changes in capitalization of Fiserv as
provided in Section 19 hereof, the maximum number of shares of the Common Stock
which shall be made available for sale under the Plan shall be five hundred
thousand (500,000) shares, plus an annual increase to be added on the first day
of Fiserv's fiscal year beginning in 2001 equal to the least of (i) three
hundred thousand (300,000) shares, (ii) one percent (1%) of the shares of Common
Stock outstanding on such date or (iii) a lesser amount determined by the Board.
If, on a given Grant/Exercise Date, the number of shares with respect to which
options are to be exercised exceeds the number of shares then available under
the Plan, Fiserv shall make a pro rata allocation of the shares remaining
available for purchase in as uniform a manner as shall be practicable and as it
shall determine to be equitable.
b. A participant shall have no interest or voting right in shares covered
by his or her option until the option has been exercised.
c. Shares to be delivered to a participant under the Plan shall be
registered solely in the name of the participant.
d. Cash dividends attributable to shares allocated to participants'
accounts as of the record date for which such cash dividends are declared will
be used to purchase additional full or fractional shares of stock.
14. ADMINISTRATION.
The Plan shall be administered by the Board or a committee appointed by the
Board. The Board or the committee shall have full and exclusive discretionary
authority to construe, interpret and apply the terms of the Plan, to determine
eligibility and to adjudicate all disputed claims filed under the Plan. Every
finding, decision and determination made by the Board or the committee shall, to
the full extent permitted by law, be final and binding upon all parties.
15. DESIGNATION OF BENEFICIARY.
a. A participant may file with the Company, on a form provided by the
Company, a written designation of a beneficiary who is to receive any shares and
cash from the participant's account under the Plan in the event of such
participant's death subsequent to a Grant/Exercise Date on which the option is
exercised but prior to delivery to such participant of such shares and cash.
b. The designation of beneficiary may be changed by the participant at any
time by delivering written notice to the Company, on a form provided by the
Company. In the event of the death of a participant, and in the absence of a
beneficiary validly designated under the Plan who is living at the time of such
participant's death, the Board shall deliver such shares and/or cash to the
surviving legal spouse (if any) of the participant, or if there is no surviving
spouse, then to the estate of the participant.
16. TRANSFERABILITY.
Neither payroll deductions credited to a participant's account nor any
rights to exercise an option or to receive shares under the Plan may be
assigned, transferred, pledged or otherwise disposed of in any way (other than
as provided in Section 15 hereof) by the participant. Any such attempt at
assignment transfer, pledge or other disposition shall be without effect, except
that the Company may treat such act as an election to withdraw from an Offering
Period in accordance with Section 10 hereof.
17. USE OF FUNDS.
All payroll deductions received or held by the Company under the Plan may
be used by the Company for any corporate purpose, and the Company shall not be
obligated to segregate such payroll deductions.
18. REPORTS.
Individual accounts shall be maintained for each participant in the Plan.
Statements of account shall be given to participating Employees after the end of
each Offering Period setting forth with respect to such Offering Period the
number of shares purchased and the price per share thereof, and also setting
forth the total number of shares then held in each account.
19. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, DISSOLUTION, LIQUIDATION, MERGER
OR ASSET SALE.
a. CHANGES IN CAPITALIZATION. Subject to any required action by the
stockholders of Fiserv, the Reserves, the maximum number of shares each
participant may purchase per Offering Period (pursuant to Section 7), as well as
the price per share and the number of shares of Common Stock covered by each
option under the Plan that has not yet been exercised, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of shares of Common Stock effected without receipt of
consideration by Fiserv; provided however, that conversion of any convertible
securities of Fiserv shall not be deemed to have been "effected without receipt
of consideration." Such adjustment shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive. Except as
expressly provided herein, no issuance by Fiserv of shares of stock of any
class, or securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with respect to, the
number or price of shares of Common Stock subject to an option.
b. DISSOLUTION OR LIQUIDATION. In the event of the proposed dissolution or
liquidation of Fiserv, the Offering Period then in progress shall be shortened
by setting a new Grant/Exercise Date (the "New Grant/Exercise Date"), and shall
terminate immediately prior to the consummation of such proposed dissolution or
liquidation, unless provided otherwise by the Board. The New Grant/Exercise Date
shall be before the date of Fiserv's proposed dissolution or liquidation. The
Board shall notify each participant in writing, at least twenty-one (21)
business days prior to the New Grant/Exercise Date, that the Grant/Exercise Date
for the participant's option has been changed to the New Grant/Exercise Date and
that the participant's option shall be exercised automatically on the New
Grant/Exercise Date, unless prior to such date the participant has withdrawn
from the Offering Period as provided in Section 10 hereof.
c. MERGER OR ASSET SALE. In the event of a proposed sale of all or
substantially all of the assets of Fiserv, or the merger of Fiserv with or into
another corporation, each outstanding option shall be assumed or an equivalent
option substituted by the successor corporation or a parent or subsidiary of the
successor corporation. In the event that the successor corporation refuses to
assume or substitute for the option, the Offering Period then in progress shall
be shortened by setting a new Grant/Exercise Date (the "New Grant/Exercise
Date"). The New Grant/Exercise Date shall be before the date of Fiserv's
proposed sale or merger. The Board shall notify each participant in writing, at
least twenty-one (21) business days prior to the New Grant/Exercise Date, that
the Grant/Exercise Date for the participant's option has been changed to the New
Grant/Exercise Date and that the participant's option shall be exercised
automatically on the New Grant/Exercise Date, unless prior to such date the
participant has withdrawn from the Offering Period as provided in Section 10
hereof.
20. AMENDMENT OR TERMINATION.
a. The Board may at any time and for any reason terminate or amend the
Plan. Except as provided in Section 19, no such termination can affect options
previously granted. Nevertheless, an Offering Period may be terminated by the
Board of Directors on any Grant/Exercise Date if the Board determines that the
termination of the Offering Period or the Plan is in the best interest of Fiserv
and its stockholders. Except as provided in Section 19 and Section 20 hereof, no
amendment may make any change in any option theretofore granted that adversely
affects the rights of any participant. To the extent necessary to comply with
Section 423 of the Code (or any other applicable law, regulation or stock
exchange rule), Fiserv shall obtain shareholder approval in such a manner and to
such a degree as required.
b. Without stockholder approval or consent and without regard to whether
any participant rights may be considered to have been "adversely affected," the
Board (or its committee) shall be entitled to change the Offering Periods, limit
the frequency and/or number of changes in the amount withheld during an Offering
Period, establish the exchange ratio applicable to amounts withheld in a
currency other than U.S. dollars, permit payroll withholding in excess of the
amount designated by a participant in order to adjust for delays or mistakes in
the Company's processing of properly completed withholding elections, establish
reasonable waiting and adjustment periods and/or accounting and crediting
procedures to ensure that amounts applied toward the purchase of Common Stock
for each participant properly correspond with amounts withheld from the
participant's Compensation, and establish such other limitations or procedures
as the Board (or its committee) determines in its sole discretion advisable,
that are consistent with the Plan.
c. In the event the Board determines that the ongoing operation of the Plan
may result in unfavorable financial accounting consequences, the Board may, in
its discretion and, to the extent necessary or desirable, modify or amend the
Plan to reduce or eliminate such accounting consequences including, but not
limited to:
i. altering the Purchase Price for any Offering Period, including an
Offering Period underway at the time of the change in Purchase
Price;
ii. shortening any Offering Period so that the Offering Period ends
on a new Grant/Exercise Date, including an Offering Period
underway at the time of the Board action; and
iii. allocating shares.
Such modifications or amendments shall not require stockholder approval or
the consent of any Plan participants.
21. NOTICES.
All notices or other communications by a participant to the Company under
or in connection with the Plan shall be deemed to have been duly given when
received in the form specified by the Company at the location, or by the person,
designated by the Company for the receipt thereof.
22. CONDITIONS UPON ISSUANCE OF SHARES.
Shares shall not be issued with respect to an option unless the exercise of
such option and the issuance and delivery of such shares pursuant thereto shall
comply with all applicable provisions of law, domestic or foreign, including,
without limitation, the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the shares may
then be listed, and shall be further subject to the approval of counsel for
Fiserv with respect to such compliance.
As a condition to the exercise of an option, the Company may require the
person exercising such option to represent and warrant at the time of any such
exercise that the shares are being purchased only for investment and without any
present intention to sell or distribute such shares if, in the opinion of
counsel for Fiserv, such a representation is required by any of the
aforementioned applicable provisions of law.
23. TERM OF PLAN.
The Plan shall become effective on January 1, 2000. It shall continue in
effect for a term of ten (10) years unless sooner terminated under Section 20
hereof.
24. NO EMPLOYMENT RIGHTS.
The Plan does not, directly or indirectly, create in any Employee or class
of Employees any right with respect to continuation of employment by the
Company, and it may not be deemed to interfere in any way with the Company's
right to terminate, or otherwise modify, an Employee's employment at any time.
25. EFFECT OF PLAN.
The provisions of the Plan, in accordance with its terms, will be binding
upon, and inure to the benefit of, all successors of each Employee participating
in the Plan including, without limitation, the Employee's estate and the
executors, administrators or trustees thereof, heirs and legatees, and any
receiver, trustee in bankruptcy or representative of creditors of the Employee.
26. GOVERNING LAW.
The Plan will be construed, interpreted, applied and enforced in accordance
with the laws of the State of Wisconsin, other than its laws regarding choice of
laws, except to the extent that the state law is preempted by any federal law.
Corporate Office
[Fiserv Logo]
October 25, 1999
Fiserv, Inc.
255 Fiserv Drive
Brookfield, WI 53045
Fiserv, Inc.
REGISTRATION STATEMENT ON FORM S-8
Dear Sirs:
I have acted as counsel to Fiserv, Inc., a Wisconsin corporation (the
"Company"), in connection with its Registration Statement on Form S-8 (the
"Registration Statement"), filed under the Securities Act of 1933 (the "Act"),
relating to the offer and sale of up to 800,000 shares of the Company's common
stock (the "Shares") under the Fiserv, Inc. Employee Stock Purchase Plan (the
"Plan").
In that connection, I have examined originals, or copies certified or
otherwise identified to my satisfaction of such documents, corporate records and
other instruments as I have deemed necessary or appropriate for purposes of this
opinion, including the Restated Articles of Incorporation and By-Laws, as
amended, of the Company.
Based upon the foregoing, I am of the opinion that the Shares, when issued
and sold in accordance with the Plan, will be legally issued, fully paid and
non-assessable.
I hereby consent to the use of this opinion as an exhibit to this
Registration Statement and to the reference to me under "Legal Matters" in each
Prospectus comprising a part of this 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,
/S/CHARLES W. SPRAGUE
- -------------------------
Charles W. Sprague
Executive Vice President,
General Counsel and Secretary
Fiserv Corporate Headquarters, 255 Fiserv Drive, Brookfield, Wisconsin 53045
Ph: 414-879-5000
Mailing Address: P.O. Box 979, Brookfield, Wisconsin 53008-0979
Internet: www.fiserv.com
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Fiserv, Inc. on Form S-8 of our reports dated January 29, 1999, appearing in and
incorporated by reference in the Annual Report on Form 10-K of Fiserv, Inc. for
the year ended December 31, 1998.
/S/DELOITTE & TOUCHE LLP
Deloitte & Touche LLP
Milwaukee, Wisconsin
October 25, 1999
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 14, 1997, except for Note 12,
as to which the date is March 3, 1997, relating to the financial statements and
financial statement schedules of Fiserv, Inc., which appears in Fiserv, Inc.'s
Annual Report on Form 10-K for the year ended December 31, 1996.
/S/PRICEWATERHOUSECOOPERS LLP
2400 Eleven Penn Center
Philadelphia, Pennsylvania
October 25, 1999
<PAGE>
EXHIBIT 24
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-8 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 25th day of October, 1999.
/S/ LESLIE M. MUMA
- ---------------------
Leslie M. Muma
<PAGE>
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-8 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 25th day of October, 1999.
/S/DONALD F. DILLON
- ---------------------
Donald F. Dillon
<PAGE>
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-8 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 25th day of October, 1999.
/S/GEORGE D. DALTON
- ---------------------
George D. Dalton
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Kenneth R. Jensen as her true and lawful attorney-in-fact and agent,
with full power of substitution, for her and in her name, place and stead, in
any and all capacities, to sign the Registration Statement on Form S-8 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 she 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 25th day of October, 1999.
/S/THOMAS P. GERRITY
- --------------------
Thomas P. Gerrity
<PAGE>
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-8 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 25th day of October, 1999.
/S/L. WILLIAM SEIDMAN
- ---------------------
L. William Seidman
<PAGE>
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-8 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 25th day of October, 1999.
/S/GERALD J. LEVY
- -------------------
Gerald J. Levy
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Kenneth R. Jensen as her true and lawful attorney-in-fact and agent,
with full power of substitution, for her and in her name, place and stead, in
any and all capacities, to sign the Registration Statement on Form S-8 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 she 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 25th day of October, 1999.
/S/THEKLA R. SHACKELFORD
- -------------------------
Thekla R. Shackelford
