Exhibit 2.1
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AGREEMENT AND PLAN OF MERGER
Among
FISERV, INC.,
FISERV SOLUTIONS, INC.,
FISERV MERGER SUB, INC.
And
INSURANCE MANAGEMENT SOLUTIONS GROUP, INC.
Dated as of April 9, 2003
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TABLE OF CONTENTS
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ARTICLE I MERGER ............................................................................... 1
SECTION 1.01 The Merger ............................................................... 1
SECTION 1.02 Articles of Merger ....................................................... 1
SECTION 1.03 Effective Time of the Merger ............................................. 2
ARTICLE II DIRECTORS AND OFFICERS .............................................................. 2
SECTION 2.01 Directors ................................................................ 2
SECTION 2.02 Officers ................................................................. 2
ARTICLE III CONVERSION OF SHARES ............................................................... 2
SECTION 3.01 Conversion of Shares ..................................................... 2
SECTION 3.02 Exchange of Company Common Stock ......................................... 3
SECTION 3.03 Exchange of Fiserv Sub Common Stock ...................................... 4
SECTION 3.04 Dissenting Shares ........................................................ 5
SECTION 3.05 Closing .................................................................. 5
ARTICLE IV CERTAIN EFFECTS OF THE MERGER ....................................................... 5
SECTION 4.01 Effect of the Merger ..................................................... 5
SECTION 4.02 Further Assurances ....................................................... 6
ARTICLE V REPRESENTATIONS AND WARRANTIES ....................................................... 6
SECTION 5.01 Representations and Warranties of the Company ............................ 6
SECTION 5.02 Representations and Warranties of Fiserv, Fiserv Solutions and Fiserv Sub. 29
ARTICLE VI ADDITIONAL COVENANTS AND AGREEMENTS ................................................. 32
SECTION 6.01 Conduct of Business ...................................................... 32
SECTION 6.02 Access to Information by Fiserv, Fiserv Solutions and Fiserv Sub ......... 33
SECTION 6.03 Consents and Authorizations .............................................. 33
SECTION 6.04 Non-Assignable Licenses, Leases and Contracts ............................ 33
SECTION 6.05 Employee Matters ......................................................... 33
SECTION 6.06 Taxes .................................................................... 34
SECTION 6.07 Solicitation of Alternative Transaction .................................. 34
SECTION 6.08 Proxy Material ........................................................... 36
SECTION 6.09 Shareholders' Meetings ................................................... 37
SECTION 6.10 State Takeover Statutes .................................................. 38
SECTION 6.11 Shareholder Litigation ................................................... 38
SECTION 6.12 Confidentiality .......................................................... 38
SECTION 6.13 Further Actions .......................................................... 39
SECTION 6.14 Notification of Certain Matters .......................................... 39
SECTION 6.15 Voting of Shares ......................................................... 39
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SECTION 6.16 Indemnification .......................................................... 39
SECTION 6.17 Officer and Director Insurance ........................................... 41
SECTION 6.18 Deposit of Aggregate Merger Consideration ................................ 41
ARTICLE VII CONDITIONS PRECEDENT ............................................................... 41
SECTION 7.01 Conditions to Obligations of Fiserv, Fiserv Solutions, Fiserv Sub, and
the Company .............................................................. 41
SECTION 7.02 Conditions Precedent to the Obligations of Fiserv, Fiserv Solutions and
Fiserv Sub ............................................................... 42
SECTION 7.03 Conditions Precedent to the Obligations of the Company ................... 43
ARTICLE VIII TERMINATION; AMENDMENT; WAIVER .................................................... 44
SECTION 8.01 Termination .............................................................. 44
SECTION 8.02 Effect of Termination .................................................... 46
SECTION 8.03 Amendment ................................................................ 47
SECTION 8.04 Extension; Waiver ........................................................ 47
ARTICLE IX MISCELLANEOUS ....................................................................... 48
SECTION 9.01 Expenses, Etc ............................................................ 48
SECTION 9.02 Execution in Counterparts ................................................ 48
SECTION 9.03 Notices .................................................................. 48
SECTION 9.04 Entire Agreement ......................................................... 49
SECTION 9.05 Applicable Law ........................................................... 49
SECTION 9.06 Binding Effect; Benefits ................................................. 50
SECTION 9.07 Investigation; Non-Survival of Representations and Warranties ............ 50
SECTION 9.08 Specific Performance ..................................................... 50
SECTION 9.09 Assignability ............................................................ 50
SECTION 9.10 Prevailing Party ......................................................... 50
SECTION 9.11 Public Announcements ..................................................... 50
SECTION 9.12 Invalid Provisions ....................................................... 51
SECTION 9.13 Interpretation ........................................................... 51
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INDEX TO EXHIBITS
Exhibit Description
A Articles of Merger
B Form of Agreement to Facilitate Merger
C Form of Opinion of Counsel to the Company
D Form of FIRPTA Affidavit of the Company
E Required Consents
F Form of Opinion of Counsel to Fiserv, Fiserv
Solutions and Fiserv Sub
INDEX TO SCHEDULES
Schedule Description
I Disclosure Schedule
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of
April 9, 2003, among FISERV, INC., a Wisconsin corporation ("Fiserv"), FISERV
SOLUTIONS, INC., a Wisconsin corporation ("Fiserv Solutions") and a wholly-owned
subsidiary of Fiserv, FISERV MERGER SUB, INC., a Florida corporation ("Fiserv
Sub") and a wholly-owned subsidiary of Fiserv Solutions, and INSURANCE
MANAGEMENT SOLUTIONS GROUP, INC., a Florida corporation (the "Company").
W I T N E S S E T H:
WHEREAS, as of December 31, 2002, the Company had issued and
outstanding 12,276,063 shares of common stock, par value $0.01 per share (the
"Company Common Stock" or "Shares"); and
WHEREAS, Fiserv, Fiserv Solutions and Fiserv Sub desire that
Fiserv Sub merge with and into the Company and, to realize the benefits thereof,
the Company also desires that Fiserv Sub merge with and into the Company (the
"Merger"), upon the terms and subject to the conditions set forth herein and in
accordance with the Florida Business Corporation Act (the "Florida Law"), and
that each outstanding share of Company Common Stock, excluding any such shares
held in the treasury of the Company, be converted into the right to receive
cash, without interest, as provided herein (Fiserv Sub and the Company being
hereinafter sometimes referred to as the "Constituent Corporations" and the
Company, after the Merger as the surviving entity, being hereinafter sometimes
referred to as the "Surviving Corporation");
NOW, THEREFORE, in consideration of the mutual
representations, warranties, covenants, agreements and conditions contained
herein, and in order to set forth the terms and conditions of the Merger and the
mode of carrying the same into effect, the parties hereby agree as follows:
ARTICLE I
MERGER
SECTION 1.01 The Merger. At the Effective Time (as hereinafter
defined), Fiserv Sub shall be merged with and into the Company on the terms and
conditions hereinafter set forth as permitted by and in accordance with the
Florida Law. Thereupon, the separate existence of Fiserv Sub shall cease, and
the Company, as the Surviving Corporation, shall continue to exist under and be
governed by the Florida Law. The Amended and Restated Articles of Incorporation
and Amended and Restated Bylaws of the Company, each as in effect at the
Effective Time shall be the articles of incorporation and bylaws of the
Surviving Corporation until amended in accordance with the provisions thereof
and applicable law.
SECTION 1.02 Articles of Merger. As soon as practicable following
satisfaction or waiver of the conditions specified in Article VII hereof,
and provided that this Agreement has not been terminated and abandoned
pursuant to Article VIII hereof, the Company and Fiserv Sub will cause the
Articles of Merger in substantially the form of Exhibit A attached hereto
(the "Articles of Merger") to be executed and filed with the Secretary of
State of the State of Florida as provided under the Florida Law.
SECTION 1.03 Effective Time of the Merger. The Merger shall become
effective upon the filing of the Articles of Merger with the Secretary of
State of the State of Florida or at such other date or time thereafter as
the parties may agree in writing and as shall be provided in the Articles
of Merger. The date and time of such effectiveness is herein sometimes
referred to as the "Effective Time".
ARTICLE II
DIRECTORS AND OFFICERS
SECTION 2.01 Directors. From and after the Effective Time, the members
of the Board of Directors of the Surviving Corporation shall consist of the
members of the Board of Directors of Fiserv Sub (as constituted immediately
prior to the Effective Time) until changed in accordance with the Amended
and Restated Articles of Incorporation and Amended and Restated Bylaws of
the Surviving Corporation and applicable law.
SECTION 2.02 Officers. From and after the Effective Time, the officers
of the Surviving Corporation shall consist of the officers of the Company
(as constituted immediately prior to the Effective Time) until changed in
accordance with the Amended and Restated Articles of Incorporation and
Amended and Restated Bylaws of the Surviving Corporation and applicable
law.
ARTICLE III
CONVERSION OF SHARES
SECTION 3.01 Conversion of Shares.
(a) Upon the Effective Time, (i) each share of Company Common
Stock issued and outstanding immediately prior to the Effective Time
(other than the 8,354,884 shares (the "BIG Shares") of Company Common
Stock owned beneficially and of record by Bankers Insurance Company, a
Florida corporation ("BIC"), Bankers Security Insurance Company, a
Florida corporation ("BSIC"), Bonded Builders Service Corp., a Florida
corporation ("BBSC"), and Bankers Insurance Group, Inc., a Florida
corporation and the parent of BIC, BSIC and BBSC ("BIG" and,
collectively with BIC, BSIC and BBSC, the "Principal Shareholders"),
and other than any shares of Company Common Stock to be canceled
pursuant to Section 3.01(b) and any Dissenting Shares (as hereinafter
defined)) shall, without any further action, be converted into the
right to receive $3.30 in cash, without interest, and (ii) each BIG
Share shall, without any further action, be converted into the right to
receive $3.26 in cash, without interest (such cash payments,
collectively, the "Merger Consideration").
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(b) All shares of Company Common Stock owned by the Company or any
direct or indirect wholly-owned subsidiary of the Company or Fiserv, Fiserv
Solutions or Fiserv Sub or any other subsidiary of Fiserv immediately prior
to the Effective Time shall be cancelled and extinguished without any
conversion thereof.
(c) Each share of common stock of Fiserv Sub, par value $.01 per share
("Fiserv Sub Common Stock"), issued and outstanding immediately prior to
the Effective Time shall be converted into one share of the common stock of
the Surviving Corporation, par value $.01 per share ("Surviving Corporation
Common Stock").
SECTION 3.02 Exchange of Company Common Stock.
(a) As soon as reasonably practicable, but in no event more than five
days after the Effective Time, Fiserv shall cause Fiserv's stock transfer
agent or such other person as Fiserv may reasonably appoint to act as
paying agent (the "Paying Agent") to mail to each holder of record (other
than Fiserv, Fiserv Solutions, Fiserv Sub or any other subsidiary of Fiserv
or the Company) of a certificate or certificates that immediately prior to
the Effective Time represented outstanding shares of Company Common Stock
("Company Certificates") (i) a form letter of transmittal (which shall
specify that delivery shall be effective, and risk of loss and title to the
Company Certificate(s) shall pass, only upon delivery of the Company
Certificate(s) to the Paying Agent) and (ii) instructions for such holder's
use in effecting the surrender of the Company Certificates in exchange for
payment of the Merger Consideration. Prior to or contemporaneously with the
Effective Time, Fiserv shall cause to be deposited with the Paying Agent
amounts sufficient in the aggregate to provide all funds necessary for the
Paying Agent to make payments pursuant to Section 3.01(a) to holders of
Company Common Stock issued and outstanding immediately prior to the
Effective Time who are to receive the Merger Consideration.
(b) Upon surrender to the Paying Agent of one or more Company
Certificates for cancellation, together with a duly-executed letter of
transmittal, the Paying Agent shall distribute to the holder of such
Company Certificate(s) a bank check (or other immediately available funds)
in the amount of cash into which the shares of Company Common Stock
represented by the Company Certificate(s) shall have been converted
pursuant to Section 3.01(a), and the Company Certificate(s) so surrendered
shall be canceled. In the event of a transfer of ownership of Company
Common Stock that is not registered in the transfer records of the Company,
it shall be a condition to the payment of the Merger Consideration that the
Company Certificate(s) so surrendered shall be properly endorsed or be
otherwise in proper form for transfer and that such transferee shall (i)
pay to the Paying Agent any transfer or other taxes required, or (ii)
establish to the reasonable satisfaction of the Paying Agent that such tax
has been paid or is not payable.
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(c) After the Effective Time, there shall be no further registration
of transfers on the stock transfer books of the Surviving Corporation of
the shares of Company Common Stock that were outstanding immediately prior
to the Effective Time. If, after the Effective Time, Company Certificates
representing such shares are presented to the Surviving Corporation, they
shall be canceled and exchanged as provided in this Article III. As of the
Effective Time, the holders of Company Certificates representing shares of
Company Common Stock shall cease to have any rights as shareholders of the
Company, except such rights, if any, as they may have pursuant to the
Florida Law. Except as provided above, until such Company Certificates are
surrendered for exchange, each such Company Certificate shall, after the
Effective Time, represent for all purposes only the right to receive the
cash value of such Shares as provided in Section 3.01(a) hereof.
(d) In the event any Company Certificate shall have been lost,
stolen, or destroyed, the Paying Agent shall issue in exchange for such
lost, stolen, or destroyed Company Certificate, upon the making of an
affidavit of that fact by the holder thereof, such cash as may be required
pursuant to Section 3.01(a); provided, however, that Fiserv may, in its
reasonable discretion and as a condition precedent to the issuance thereof,
require the owner of such lost, stolen, or destroyed Company Certificates
to deliver a bond in such sum as Fiserv may reasonably direct (but in no
event in an amount greater than the amount of cash to which such owner is
entitled pursuant to Section 3.01(a)) as indemnity against any claim that
may be made against Fiserv or the Paying Agent with respect to such Company
Certificates alleged to have been lost, stolen, or destroyed.
(e) Notwithstanding anything to the contrary in this Section 3.02,
none of Fiserv, Fiserv Solutions or the Surviving Corporation shall be
liable to a holder of shares of Company Common Stock for any amount
properly paid to a public official pursuant to any applicable abandoned
property, escheat or similar law.
SECTION 3.03 Exchange of Fiserv Sub Common Stock. From and after the
Effective Time, each outstanding certificate previously representing shares of
Fiserv Sub Common Stock shall be deemed for all purposes to evidence ownership
of and to represent the number of shares of Surviving Corporation Common Stock
into which such shares of Fiserv Sub Common Stock shall have been converted.
Promptly after the Effective Time, the Surviving Corporation shall issue to
Fiserv a stock certificate or certificates representing such shares of Surviving
Corporation Common Stock in exchange for the certificate or certificates that
formerly represented shares of Fiserv Sub Common Stock, which shall be canceled.
SECTION 3.04 Dissenting Shares.
(a) No Conversion. Notwithstanding any provision of this Agreement to
the contrary, any shares of Company Common Stock held by a shareholder who
has demanded and perfected dissenters' rights for such shares in accordance
with the Florida Law, including Sections 607.1301, 607.1302 and 607.1320 of
the Florida Law, and who has not effectively withdrawn or lost such
appraisal or
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dissenters' rights ("Dissenting Shares") shall not be converted into or
represent the right to receive the Merger Consideration pursuant to Section
3.01(a), but the holder thereof shall only be entitled to such rights as
are granted by the Florida Law.
(b) Withdrawal or Loss of Dissenters' Rights. Notwithstanding the
provisions of Section 3.04(a), if any holder of shares of Company Common
Stock who is otherwise entitled to exercise dissenters' rights under the
Florida Law shall effectively withdraw or lose (through failure to
exercise, perfect or otherwise) such dissenters' rights, then, as of the
later of the Effective Time and the occurrence of such event, such
shareholder's shares shall automatically be converted into and represent
only the right to receive the Merger Consideration, without interest
thereon, upon surrender of the Company Certificate(s) representing such
shares.
(c) Notice, etc. The Company shall give Fiserv and Fiserv Solutions
(i) prompt notice of any written demands for the exercise of dissenters'
rights in respect of any shares of Company Common Stock, withdrawals of
such demands, and any other similar instruments served pursuant to the
Florida Law (including instruments concerning dissenters' rights) and
received by the Company and (ii) the opportunity to participate in all
negotiations and proceedings with respect to such demands. The Company
shall not, except with the prior written consent (which consent shall not
be unreasonably withheld, delayed or conditioned) of Fiserv and Fiserv
Solutions, or as may be required by applicable law, voluntarily make any
payment with respect to any demands for the exercise of dissenters' rights
in respect of any shares of Company Common Stock or offer to settle or
settle any such demands.
SECTION 3.05 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place (a) at the offices of Fiserv, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ at 10 a.m., local time, not later than the
third business day after the date on which the last of the conditions set forth
in Article VII hereof is satisfied or waived or (b) at such other time and place
as the parties hereto may agree in writing.
ARTICLE IV
CERTAIN EFFECTS OF THE MERGER
SECTION 4.01 Effect of the Merger. The Merger shall have the effects set
forth in this Agreement and under the applicable provisions of the Florida Law.
SECTION 4.02 Further Assurances. If at any time after the Effective Time
the Surviving Corporation shall reasonably determine that any further deeds,
assignments or assurances in law or any other acts are necessary, desirable or
proper (a) to vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation, the title to any property or right of the Constituent Corporations
acquired or to be acquired by reason of, or as a result of, the Merger, or (b)
otherwise to carry out the purposes of this Agreement, the Constituent
Corporations agree that the Surviving Corporation and its proper officers and
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directors shall and will execute and deliver all such property, deeds,
assignments and assurances in law and do all acts necessary, desirable or proper
to vest, perfect or confirm title to such property or rights in the Surviving
Corporation or otherwise to carry out the purposes of this Agreement, and that
the proper officers and directors of the Constituent Corporations and the proper
officers and directors of the Surviving Corporation are fully authorized in the
name of the Constituent Corporations or otherwise to take any and all such
action.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01 Representations and Warranties of the Company. Except as
otherwise set forth in the Company SEC Reports (as hereinafter defined) or in
Disclosure Schedule (the "Disclosure Schedule") annexed hereto as Schedule I,
the Company represents and warrants to Fiserv, Fiserv Solutions and Fiserv Sub
as follows:
(a) Organization and Qualification, etc. The Company is a corporation
duly organized, validly existing and of active status under the laws of the
State of Florida, 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 as
a foreign corporation in each other jurisdiction as set forth in the
Disclosure Schedule where the nature of the Company's business in such
jurisdiction requires such qualification and the failure to so qualify
would have a Material Adverse Effect (as hereinafter defined) on the
Company. The copies of the Company's Amended and Restated Articles of
Incorporation and Amended and Restated Bylaws, as amended to date, which
have been delivered or made available to Fiserv and Fiserv Solutions, are
complete and correct, and such instruments, as amended to date, 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 series of
related changes in, or related effects on, the business of such party as
currently conducted by such party and its subsidiaries, taken as a whole,
that is materially adverse to its results of operations or financial
condition before giving effect to the transactions contemplated by this
Agreement; provided, however, that any such change(s) or effect(s)
resulting from (i) any change(s) in the economy or securities markets of
the United States (or any region thereof) in general, (ii) any change(s) in
the insurance or insurance administration industries in general, or (iii)
the execution and delivery of this Agreement, the transactions contemplated
hereby or the announcement thereof shall not be considered when determining
if a Material Adverse Effect has occurred
(b) Capital Stock.
(i) The authorized capital stock of the Company consists of
20,000,000 shares of Preferred Stock, par value $0.01 per share (the
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"Preferred Stock"), and 100,000,000 shares of Company Common Stock, of
which as of the date hereof no shares of Preferred Stock and
12,276,063 shares of Company Common Stock were validly issued and
outstanding, fully paid and nonassessable. No shares of Company Common
Stock or Preferred Stock are held in the treasury by the Company.
(ii) There are no options, warrants, calls, rights, commitments
or agreements of any character, written or oral, to which the Company
is a party or by which it is bound obligating the Company to issue,
deliver, sell, repurchase or redeem, or cause to be issued, delivered,
sold, repurchased or redeemed any shares of the capital stock of the
Company or obligating the Company to grant, extend, accelerate the
vesting of, change the price of, otherwise amend or enter into any
such option, warrant, call, right, commitment or agreement. There are
no outstanding or authorized stock appreciation, phantom stock, profit
participation or other similar rights with respect to the Company.
Except as contemplated by this Agreement, there are no voting trusts,
proxies or other agreements or understandings with respect to the
capital stock of the Company to which the Company is a party.
(c) Subsidiaries. Except for the Subsidiaries (as hereinafter
defined), the Company does not own of record or beneficially, 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 general or limited partnership, limited
liability partnership, limited liability company, joint venture or other
non-corporate business enterprise. The Company owns directly all the
outstanding capital stock of the subsidiaries listed in Section 5.01(c) of
the Disclosure Schedule (the "Subsidiaries") (except for directors'
qualifying shares, if any), free and clear of all encumbrances other than
Permitted Exceptions (as hereinafter defined). The capital stock of each
Subsidiary is duly authorized and validly issued and outstanding, fully
paid and nonassessable. No Subsidiary has issued or sold any shares of its
capital stock or any securities or obligations convertible into or
exchangeable for, or given any person any right to acquire from such
Subsidiary, any shares of its capital stock, and no such securities or
obligations are outstanding. Each Subsidiary is a corporation duly
organized, validly existing and in good standing or of active status under
the laws of its jurisdiction of organization, and has the corporate power
and authority to own and hold its properties and to carry on its business
as currently conducted. The copies of the articles or certificates of
incorporation and by-laws (or, where applicable, other such similar
governance documents) of each Subsidiary, as amended to date, which have
been delivered to Fiserv were complete and correct, and such instruments,
as so amended, are in full force and effect at the date hereof. For
purposes of this Section 5.01, the term "Company" shall be deemed to
include the Subsidiaries except in Section 5.01(a) through Section 5.01(g)
(inclusive) and Section 5.01(y) and except where otherwise noted.
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(d) Authority Relative to Agreement. The Company has the corporate
power and authority to execute and deliver this Agreement and to consummate
the transactions contemplated on the part of the Company hereby. The
execution and delivery by the Company of this Agreement, and the
consummation by the Company of the transactions contemplated on its part
hereby, have been duly authorized by its Board of Directors. No other
corporate action on the part of the Company (other than Shareholder
Approval (as hereinafter defined)) or any Subsidiary is necessary to
authorize the execution and delivery of this Agreement by the Company, and,
subject to obtaining the Company Shareholder Approval, no other corporate
action on the part of the Company or any Subsidiary is necessary to
consummate the transactions contemplated hereby. This Agreement has been
duly executed and delivered by the Company and, assuming the due
authorization, 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
Amended and Restated Articles of Incorporation or Amended and Restated
Bylaws of the Company or the Articles or Certificate of Incorporation or
Bylaws of any of its Subsidiaries, (ii) violate applicable requirements of
the Exchange Act (as hereinafter defined), state takeover or securities
laws, the rules of Nasdaq (as hereinafter defined), (iii) 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 or any of its
Subsidiaries pursuant to any provision of, any mortgage or lien or material
lease, agreement, license or instrument or any order, arbitration award,
judgment or decree to which the Company or any of its Subsidiaries is a
party or by which any of its assets is bound, and do not and will not
violate or conflict with any other material restriction of any kind or
character to which the Company or any of its Subsidiaries is subject or by
which any of its assets may be bound, and the same does not and will not
constitute an event permitting termination of any such mortgage or lien or
material lease, agreement, license or instrument to which the Company or
any of its Subsidiaries is a party or (iv) violate any other law, ordinance
or regulation to which the Company or any of its Subsidiaries is subject,
except in each case or cases, for any such violations, acceleration,
creation, imposition, conflict or termination which would not, individually
or in the aggregate, reasonably be expected to have an Adverse
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Effect (as hereinafter defined) on the Company. Under applicable law, the
current Amended and Restated Articles of Incorporation of the Company and
Nasdaq rules, the affirmative vote of the holders of a majority of the
outstanding shares of Company Common Stock is the only vote required for
the shareholders of the Company to approve the Merger (the "Company
Shareholder Approval"). "Adverse Effect" means any change in, or effect on,
or series of related changes in, or related effects on, the business of the
Company as currently conducted that would result in damages or liability of
the sum of $250,000 or more.
(f) Government Approvals. Except for (i) the filing of the Articles
of Merger with the Secretary of State of the State of Florida and (ii)
applicable requirements of the Exchange Act, state takeover or securities
laws and the rules of Nasdaq, 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 (x) as may be necessary as a
result of any facts or circumstances relating solely to Fiserv, Fiserv
Solutions or Fiserv Sub or (y) 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) Company SEC Reports. The Company has filed with the Securities
and Exchange Commission (the "SEC"), at or prior to the time due (or within
the time prescribed by Rule 12b-25 under the Exchange Act), and has
heretofore made available to Fiserv and Fiserv Solutions, true and complete
copies of, all forms, reports, schedules, registration statements and
definitive proxy statements (together with all information incorporated
therein by reference, the "Company SEC Reports") required to be filed by it
with the SEC since January 1, 2000. As of their respective dates, the
Company SEC Reports complied in all material respects with the requirements
of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of
1934, as amended (the "Exchange Act") or the Securities Act of 1933, as
amended (the "Securities Act"), as the case may be, and the rules and
regulations of the SEC thereunder applicable to such Company SEC Reports
and the information contained in the Company SEC Reports fairly presented,
in all material respects, the financial condition and results of operations
of the Company. As of their respective dates and as of the date any
information from such Company SEC Reports has been incorporated by
reference, the Company SEC Reports 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.
(h) Financial Statements. The Company's SEC Reports contain
consolidated audited balance sheets of the Company as of December 31, 2001
and December 31, 2002, and the related consolidated audited statements of
income, shareholders' equity and cash flows for the periods then ended,
certified by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, the certified public accounting firm
retained by the Company
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(collectively, the "Company Financial Statements"). The Company Financial
Statements have been prepared in accordance with GAAP consistently applied
(except as otherwise indicated therein) and present fairly the financial
position and results of operations of the Company and its Subsidiaries as
of and for the respective periods then ended. In addition, the Company has
provided or otherwise made available to Fiserv and Fiserv Solutions all
"management letters" or similar letters addressing the integrity of the
Company's consolidated financial statements and/or its financial controls
issued by the Company's certified public accounting firm with respect to,
and for the years included in, the audited Company Financial Statements.
(i) Absence of Certain Changes or Events. Since December 31, 2002,
the Company has not:
(i) incurred any obligation or liability (fixed or
contingent), except normal trade or business obligations incurred in
the ordinary course of business and consistent with past practice;
(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 and consistent with past
practice;
(iii) mortgaged, pledged or subjected to any lien, security
interest or other encumbrance any of its assets or properties (other
than Permitted Exceptions (as hereinafter defined)), other than in the
ordinary course of business and consistent with past practice;
(iv) transferred, leased or otherwise disposed of any of its
assets or properties or acquired any assets or properties, other than
in any case in the ordinary course of business and consistent with
past practice;
(v) cancelled or compromised any debt or claim, other than in
the ordinary course of business and consistent with past practice;
(vi) waived or released, under any contract, rights of the
Company having value to the Company, other than in any case in the
ordinary course of business and consistent with past practice;
(vii) transferred or granted any rights under any concessions,
leases, licenses, agreements or Intellectual Property (as hereinafter
defined), other than in the ordinary course of business and consistent
with past practice;
(viii) other than in the ordinary course of business and
consistent with past practice, made or granted any wage or salary
increase applicable to any group or classification of employees
generally, paid any bonuses, entered into any employment contract with
any officer or employee or
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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 those listed, or which pursuant to the terms hereof are not
required to be listed, on the Disclosure Schedule, this Agreement and
the transactions contemplated hereby, and those entered into in the
ordinary course of business and consistent with past practice;
(x) declared, paid or made any provision for payment of any
dividends or other distribution in respect of shares of Company Common
Stock, or directly or indirectly, acquired, purchased, redeemed or made
any provision for acquiring, purchasing or redeeming 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;
(xii) amended or changed the Amended and Restated Articles of
Incorporation or Amended and Restated Bylaws of the Company;
(xiii) suffered any labor trouble or claim of wrongful discharge,
discrimination or other unlawful labor practice or action;
(xiv) changed any accounting method or practice (including any
change in depreciation or amortization policies or rates);
(xv) commenced, or threatened to commence, any material lawsuit
or proceeding against a third party;
(xvi) received any notice of any claim of ownership by a third
party of the Company's Intellectual Property or of infringement by the
Company of any third party's Intellectual Property rights;
(xvii) agreed to do any of the things described in the preceding
clauses (i) through (xvi) (other than with Fiserv, Fiserv Solutions,
Fiserv Sub and their representatives); or
(xviii) suffered any Material Adverse Effect.
"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 not yet
payable; (iii) liens for Taxes, the validity of which the Company is
contesting in good faith; (iv) zoning, entitlement, building and other land
use regulations; (v) covenants, conditions, restrictions, easements and
other similar matters of record; (vi) liens for workers compensation,
unemployment insurance and other benefits incurred
-11-
in the ordinary course of business; and (vii) imperfections of title,
liens, security interests, claims and other charges and encumbrances the
existence of which would not reasonably be expected to have individually or
in the aggregate an Adverse Effect on the Company.
(j) Title to Properties; Absence of Liens and Encumbrances, etc. The
Company has good and valid 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 reflected in the
Company Financial Statements. The Company's intangible properties and
assets (excluding leasehold interests and any intangible properties and
assets described in Section 5.01(k), which section contains the Company's
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.
(k) Intellectual Property.
(i) Definitions. For all purposes of this Agreement, the following
terms shall have the following respective meanings:
(A) "Technology" means any or all of the following: (I) works
of authorship including computer programs, algorithms, routines,
source code and executable code, whether embodied in software or
otherwise, documentation, designs, files, records and data; (II)
inventions (whether or not patentable), improvements and
technology; (III) proprietary and confidential information,
including technical data and customer and supplier lists, trade
secrets, show how, know how and techniques; (IV) databases, data
compilations and collections and technical data; (V) processes,
tools, devices, methods, prototypes, schematics, bread boards, net
lists, mask works, test methodologies and hardware development
tools; and all instantiations of the foregoing in any form and
embodied in any media.
(B) "Intellectual Property Rights" means any or all of the
following and all rights in, arising out of, or associated
therewith: (I) all United States and foreign patents and utility
models and applications therefore and all reissues, divisions,
re-examinations, renewals, extensions, provisionals, continuations
and continuations-in-part thereof, and equivalent or similar rights
anywhere in the world in inventions and discoveries including
without limitation invention disclosures ("Patents"); (II) all
trade secrets and other rights in the know-how and confidential or
proprietary information ("Trade Secrets"); (III) all copyrights,
copyrights registrations and applications therefor and all other
-12-
rights corresponding thereto throughout the world
("Copyrights"); (IV) all industrial designs and any
registrations and applications therefor throughout
the world; (V) all rights in World Wide Web addresses
and domain names and applications and registrations
therefor, all trade names, trade dress, logos, common
law trademarks and service marks, trademark and
service ▇▇▇▇ registrations and applications therefor
and all goodwill associated therewith throughout the
world ("Trademarks"); and (VI) any similar,
corresponding or equivalent rights to any of the
foregoing anywhere in the world.
(C) "Company Intellectual Property" means any
Technology and Intellectual Property Rights including
the Company Registered Intellectual Property Rights
(as hereinafter defined) that are owned by, or
exclusively licensed to, the Company.
(D) "Registered Intellectual Property Rights"
means all United States, international and foreign:
(I) Patents, including applications therefor; (II)
registered Trademarks, applications to register
Trademarks, including intent-to-use applications, or
other registrations or applications related to
Trademarks; (III) Copyrights registrations and
applications to register Copyrights; and (IV) any
other Technology that is the subject of an
application, certificate, filing, registration or
other document issued by, filed with, or recorded by,
any state, government or other public legal authority
at any time.
(E) "Governmental Entity" means any national,
federal, state, municipal or local or other
government, governmental, regulatory or
administrative authority, agency or commission or any
court, tribunal or judicial or arbitral body.
(ii) Company Products. Section 5.01(k)(ii) of the
Disclosure Schedule contains a complete and accurate list (by
name and version number) of all products, software or service
offerings of the Company (collectively, the "Company
Products") that have been sold, distributed or otherwise
disposed of in the one-year period preceding the date hereof,
including any material products, software or service offerings
currently under development.
(iii) Registered Intellectual Property Rights.
Section 5.01(k)(iii) of the Disclosure Schedule lists all
Registered Intellectual Property Rights owned by, filed in the
name of or applied for by the Company as of the date of this
Agreement (the "Company Registered Intellectual Property
Rights") and lists any proceedings or actions (excluding
prosecutions), to the knowledge of the Company, before any
court or tribunal (including the
-▇▇-
▇▇▇▇▇▇ ▇▇▇▇▇▇ Patent and Trademark Office (the "PTO") or
equivalent authority anywhere in the world) related to any of
the Company Intellectual Property Rights or Company
Intellectual Property. To the Company's knowledge, necessary
documents and certificates in connection with such Company
Registered Intellectual Property Rights have been filed with
the PTO or the United States Copyright Office or equivalent
authorities in foreign jurisdictions, as the case may be, for
the purposes of maintaining the Registered Intellectual
Property Rights embodied in any Company Intellectual Property,
except where the failure to make such filings would not
reasonably be expected in the aggregate to have an Adverse
Effect on the Company. As of the Effective Time, there will be
no actions that must be taken by the Company within 120 days
of the Effective Time in order to obtain, perfect, preserve,
renew or maintain the Registered Intellectual Property,
including the payment of any registration, maintenance or
renewal fees or the filing of any responses to PTO office
actions, documents, applications or certificates. The Company
has not claimed "small business status" in the application
for, or registration of, any Company Intellectual Property
that would not be applicable to Fiserv, Fiserv Solutions
and/or Fiserv Sub.
(iv) Valid Assignment. In each case in which the
Company has acquired any Company Intellectual Property from
any person, the Company has obtained a valid and enforceable
assignment sufficient to irrevocably transfer all rights in
such Company Intellectual Property (including the right to
seek past and future damages with respect thereto) to the
Company, except where the failure to obtain such assignments
would not reasonably be expected in the aggregate to have an
Adverse Effect on the Company. The Company has recorded each
such assignment of a Registered Intellectual Property Right
assigned to the Company with the PTO or the United States
Copyright Office or equivalent authorities outside the United
States.
(v) No Invalidity, Etc. The Company has no knowledge
that any of the Company Intellectual Property is invalid or
unenforceable. To the Company's knowledge, no person is
infringing or misappropriating any Company Intellectual
Property. The Company has not received written notice from any
person claiming that such operation or any act, product,
technology or service (including products, technology or
services currently under development) of the Company infringes
or misappropriates any Intellectual Property Right of any
person or constitutes unfair competition or trade practices
under the laws of any jurisdiction (nor does the Company have
knowledge of any basis therefore). The Company does not
operate interactive voice response units on behalf of clients
in a service bureau environment.
(vi) Confidentiality. The Company has taken
reasonable steps to protect the Company's rights in
confidential information and Trade
-14-
Secrets of the Company or provided by any other person to the
Company. Without limiting the foregoing, the Company has and
enforces a policy requiring each employee, consultant and
contractor to execute proprietary information, confidentiality
and assignment agreements and, to the Company's knowledge, all
current and former employees, consultants and contractors of
the Company have executed such an agreement. The Company has
in place project management policies that require back-up
procedures to be followed, including daily storage to a
back-up server and at least weekly transmission to an off-site
storage facility, that are reasonable in the circumstances.
The Company does not permit employees, consultants or
contractors to work from sites other than Company-approved
sites and procedures are in place to assure that the Company
maintains adequate possession and control of all Company
Intellectual Property that may be being worked on by
employees, consultants or contractors off-site.
(vii) Transferability. To the knowledge of the Company,
all Company Intellectual Property will be fully transferable,
alienable or licensable by the Surviving Corporation and/or
Fiserv or Fiserv Solutions without restriction and without
payment of any kind to any third party.
(viii) No Liens. Each item of Company Intellectual
Property is free and clear of any liens except as reflected in
the Company Financial Statements and for non-exclusive
licenses granted to end-user customers in the ordinary course
of business.
(ix) No Transfer of Rights. The Company has not
transferred ownership of, or granted any exclusive license of
or right to use, or authorized the retention of any exclusive
rights to use or joint ownership of, any material Technology
or material Intellectual Property Right that is or was
material Company Intellectual Property, to any other person.
(x) Exclusive Rights. All Technology necessary to the
conduct of the Company's business as presently conducted or
currently planned to be conducted by the Company was written
and created solely by (A) employees of the Company acting
within the scope of their employment, (B) third parties who
have validly and irrevocably assigned all of their rights,
including Intellectual Property Rights therein, to the
Company, or (C) third parties who have licensed the Company's
use thereof.
(xi) All Necessary Rights. The Company Intellectual
Property constitutes all the Technology, Intellectual Property
Rights and Company Registered Intellectual Property Rights
used in and/or necessary to the conduct of the business of the
Company as it currently is conducted on the date of this
Agreement, and as it is currently planned or contemplated to
-15-
be conducted by the Company, including the design,
development, manufacture, use, import and sale of Company
Products.
(xii) No Infringement. To the knowledge of the Company,
operation of the business of the Company as it is currently
conducted, or is presently proposed to be conducted, by the
Company, including but not limited to the design, development,
use, import, branding, advertising, promotion, marketing,
manufacture and sale of Company Products does not infringe or
misappropriate any Intellectual Property Right of any person,
violate any right of any person (including any right to
privacy or publicity), or constitute unfair competition or
trade practices under the laws of any jurisdiction.
(xiii) No Proceedings. No Company Intellectual Property
or service of the Company is subject to any proceeding or
outstanding decree, order, judgment or settlement agreement or
stipulation that restricts in any manner the use, transfer or
licensing thereof by the Company or may affect the validity,
use or enforceability of such Company Intellectual Property.
(xiv) IP Contracts. Other than inbound "shrink-wrap"
and similar publicly available commercial binary code end-user
licenses having an initial purchase price of $5,000 or less,
Section 5.01(k)(xiv) of the Disclosure Schedule lists all
contracts, licenses and agreements to which the Company is a
party with respect to any Technology or Intellectual Property
Rights (including licenses described in the opening clause of
this sentence, the "IP Contracts"). The Company is not in
material breach of nor has the Company failed to materially
perform under any of the IP Contracts and, to the Company's
knowledge: (A) no other party to any such IP Contract is in
breach thereof or has failed to perform thereunder, and (B)
there are no disputes regarding the scope of or performance
under such IP Contracts, including with respect to any
payments to be made or received by the Company thereunder.
(xv) Obligation to Warrant. Other than inbound
"shrink-wrap" and similar publicly available commercial binary
code end-user licenses having an initial purchase price of
$5,000 or less, Section 5.01(k)(xv) of the Disclosure Schedule
lists all IP Contracts in which the Company has agreed to, or
has assumed, any obligation or duty to warrant, indemnify,
reimburse, hold harmless, guarantee or otherwise assume or
incur any obligation or liability or provide a right of
rescission with respect to the infringement or
misappropriation by the Company or such other person of the
Intellectual Property Rights of any person other than the
Company.
(xvi) No Grants, Assignments. To the Company's
knowledge, neither this Agreement nor the transactions
contemplated by this Agreement will result in (A) either
Fiserv's, Fiserv Solutions',
-16-
Fiserv Sub's or the Surviving Corporation's granting to any
person any right or license to any Technology or Intellectual
Property Right owned by any of them; (B) either Fiserv's,
Fiserv Solutions', Fiserv Sub's or the Surviving Corporation's
being bound by, or subject to, any non-compete or other
restriction on the operation or scope of their respective
businesses; or (C) either Fiserv's, Fiserv Solutions', Fiserv
Sub's or the Surviving Corporation's being obligated to pay
any royalties or other amounts to any person in excess of
those payable by Fiserv, Fiserv Solutions, Fiserv Sub or the
Surviving Corporation, respectively.
(l) List of Properties, Contracts and Other Data. Section
5.01(l) of 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
$150,000;
(iii) all collective bargaining agreements, all
agreements or arrangements that contain any severance pay or
post-employment liabilities or obligations, all bonus,
deferred compensation, pension, profit sharing or retirement
plans or any other employee benefit plans or arrangements, all
employment or consulting agreements or contracts with an
employee or individual consultant or salesperson or consulting
or sales agreements or contracts, under which a firm or other
organization provides services to the Company pursuant to
which the Company is obligated to make payments in excess of
$150,000 per year and all agreements or plans, including all
stock option plans, stock appreciation rights plans or stock
purchase plans, any of the benefits of which will be increased
or the vesting of benefits of which will be accelerated, by
the occurrence of any of the transactions contemplated by this
Agreement or the value of any of the benefits of which will be
calculated on the basis of any of the transactions
contemplated by this Agreement;
(iv) all contracts and commitments 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 the preceding clauses (i), (ii) or (iii) above; provided
that there need not be listed in the Disclosure Schedule
(unless required pursuant to the preceding clauses (i), (ii)
or (iii) above) any contract or commitment incurred in the
ordinary course of business and consistent with past practice
which requires payments to or by the Company during its
remaining life aggregating less than $250,000; and
-17-
(v) the current annual total cash compensation of all
employees of the Company (by position or by department) as of
a recent date (a copy of which has been submitted to Fiserv
but is not included in the Disclosure Schedule).
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 (iv) above have been 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 (l) 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 which would have, individually or when taken
together with all such other claims referred to in this Section
5.01(l), an Adverse Effect.
(m) Litigation. There are no actions, claims, charges,
suits or proceedings with respect to the business of the Company
pending against the Company of which the Company is 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 (individually, a "Governmental Entity"), nor, to the
knowledge of the Company, has the Company received any notice or threat
of any such actions, claims, charges, suits or proceedings with respect
to the business of the Company. To the knowledge of the Company, there
is no investigation pending or threatened against the Company, its
properties or any of its officers or directors by or before a
Governmental Entity. To the knowledge of the Company, no Governmental
Entity has at any time challenged or questioned the legal right of the
Company to manufacture, offer or sell any of its products or services
in the present manner or style thereof.
(n) Labor Controversies. Except as would not reasonably be
expected to have in the aggregate an Adverse Effect:
(i) there are no controversies known to the Company
between the Company and any employee or employees or any
unresolved labor union grievances or unfair labor practice or
labor arbitration proceedings pending or, to the knowledge of
the Company, threatened, related to the Company and, to the
knowledge of the Company, 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 group of Company employees and the Company is not
presently, nor has it been in the past, a party to, or bound
by, any collective bargaining agreement or union contract with
respect to employees and no collective bargaining agreement is
being negotiated by the Company;
(ii) the Company is in compliance in all material
respects, and has not received notice of, nor, to the
knowledge of the Company, has
-18-
there been threatened any claim that the Company has not
complied in all material respects, with all laws relating to
the employment of labor, including provisions thereof relating
to wages, hours, collective bargaining, the payment of social
security and similar Taxes, equal employment opportunity,
employment discrimination and employment safety nor has the
Company received notice of or, to the knowledge of the
Company, has there been threatened any claim that it is liable
for any arrears of wages or any Taxes or penalties for failure
to comply with any of the foregoing; and the Company is not
liable for any payment to any trust or other fund governed by
or maintained by or on behalf of any governmental authority
with respect to unemployment compensation benefits, social
security or other benefits or obligations for employees (other
than routine payments to be made in the ordinary course of
business and consistent with past practice) and there are no
pending, threatened or reasonably anticipated claims or
actions against the Company under any worker's compensation
policy or long-term disability policy; and
(iii) the Company does not now, nor has it ever had the
obligation to, maintain, establish, sponsor, participate in or
contribute to any international or foreign employee benefit
plan.
(o) Use of Real Property. The Company has not received any
notice of any violation of any applicable zoning or building
regulation, ordinance or other law, order, regulation or requirement
relating to the Company (representations and warranties with respect
to environmental matters being set forth in Section 5.01(p) hereof) or
any notice of default under any lease, contract, commitment, license
or permit, relating to the use and operation of the owned or leased
real property listed in the Disclosure Schedule, in either case which
would reasonably be expected to have, individually or in the
aggregate, an Adverse Effect and, to the knowledge of the Company,
there is no such violation or default which would have, individually
or in the aggregate, an Adverse Effect. The Company has not received
any written notice that any plant or other building that is owned or
covered by a lease set forth in the Disclosure Schedule hereto does
not substantially conform with all applicable ordinances, codes,
regulations and requirements, and the Company has not received any
written 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) Environmental Matters. Except for such matters as would
not reasonably be expected to have, individually or in the aggregate,
an Adverse Effect on the Company:
(i) Hazardous Materials. The Company has not: (A)
operated any underground storage tanks at any property that
the Company has at any time owned, operated, occupied or
leased; or (B) illegally released in violation of applicable
law any material amount of any substance that has been
designated by any Governmental Entity or by applicable
federal,
-19-
state or local law to the be radioactive, toxic, hazardous or
otherwise a danger to health or the environment, including
PCBs, asbestos, petroleum, urea-formaldehyde and all
substances listed as hazardous substances pursuant to the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, or defined as a hazardous
waste pursuant to the United States Resource Conservation and
Recovery Act of 1976, as amended, and the regulations
promulgated pursuant to said laws, (a "Hazardous Material"),
but excluding office and janitorial supplies properly and
safely maintained. No Hazardous Materials have been released
in violation of any applicable law, as a result of the actions
of the Company, or, to the Company's knowledge, as a result of
any actions of any third party or otherwise, in, on or under
any property, including the land and the improvements, ground
water and surface water thereof, that the Company has at any
time owned, operated, occupied or leased.
(ii) Hazardous Materials Activities. The Company has
not transported, stored, used, manufactured, disposed of,
released or exposed its employees or others to Hazardous
Materials in violation of any law in effect on or before the
date hereof, nor has the Company disposed of, transported,
sold or manufactured any product containing a Hazardous
Material (any or all of the foregoing being collectively
referred to as "Hazardous Materials Activities") in violation
of any rule, regulation, treaty or statute promulgated by any
Governmental Entity in effect prior to or as of the date
hereof to prohibit, regulate or control Hazardous Materials or
any Hazardous Material Activity.
(iii) Permits. The Company currently holds all
environmental approvals, permits, licenses, clearances and
consents (the "Environmental Permits") necessary for the
conduct of the Company's Hazardous Material Activities and
other businesses of the Company as such activities and
businesses are currently being conducted.
(iv) Environmental Liabilities. No action, proceeding,
revocation proceeding, amendment procedure, writ, injunction
or claim is pending, or, to the Company's knowledge,
threatened concerning any Environmental Permit, Hazardous
Material or any Hazardous Materials Activity of the Company.
The Company is not aware of any fact or circumstance that
could involve the Company in any environmental litigation or
impose upon the Company any environmental liability.
(q) Additional Accounting Disclosure Matters.
(i) Accounts Receivable. The accounts receivable
reflected on the balance sheet of the Company as of December
31, 2002 and all accounts receivable arising between December
31, 2002 and the date hereof, arose from bona fide
transactions in the ordinary course of business. Except for
amounts also recorded as deferred revenue, these
-20-
transactions have been recorded in accordance with GAAP
meeting the following criteria: persuasive evidence of an
arrangement exists, delivery has occurred or services have
been rendered, the sales price is fixed or determinable and no
further deliveries or services are required to be provided in
order to entitle the Company or its assignees to collect the
accounts receivable reflected on the balance sheet. No such
account has been assigned or pledged to any other person, firm
or corporation.
(ii) No Undisclosed Liabilities. The Company does not
have any liabilities, indebtedness or obligations, whether
accrued, absolute, contingent, matured or unmatured, that in
the aggregate exceed $250,000, and which (A) has not been
reflected or reserved against in the most recent Company
Financial Statements in accordance with GAAP or (B) has arisen
other than in the ordinary course of the Company's business
since the date of the latest balance sheet included in the
Company Financial Statements.
(r) Compliance with Law; Restrictions on Business Activities.
(i) No Defaults. 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 Company, to which the Company is subject
and which applies to its business, and, to the knowledge of
the Company, the Company has not been notified that is in
violation of any laws, ordinances, governmental rules or
regulations to which it is subject or that it 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.
(ii) Immigration Matters. The Company has on file a
valid Form I-9 for each employee hired by the Company on or
after November 7, 1986 and continuously employed after
November 6, 1986 or the applicable date of hire. To the
knowledge of the Company, all employees of the Company are (A)
United States citizens, or lawful permanent residents of the
United States, (B) aliens whose right to work in the United
States is unrestricted, (C) aliens who have valid, unexpired
work authorizations issued by the Attorney General of the
United States (Immigration and Naturalization Service) or (D)
aliens who have been continually employed by the Company since
November 6, 1986 or the applicable date of hire. The Company
has not been the subject of an immigration compliance or
employment visit from, nor has the Company been assessed any
fine or penalty by, or been the subject of any order or
directive of, the United States Department of Labor or the
Attorney General of the United States (Immigration and
Naturalization Service).
(iii) Restrictions on Business Activities. There is no
agreement (noncompete or otherwise), commitment, judgment,
injunction, order or
-21-
decree to which the Company is a party or otherwise binding
upon the Company which has or reasonably would be expected to
have the effect of prohibiting or impairing any business
practice (including the licensing of any product) of the
Company, any acquisition of property (tangible or intangible)
by the Company or the conduct of business by the Company.
Without limiting the foregoing, the Company has not entered
into any agreement under which the Company is restricted from
selling, licensing or otherwise distributing any of its
products to any class of customers, in any geographic area,
during any period of time or in any segment of the market.
(iv) Employees. To the knowledge of the Company, no
employee of the Company (A) is in violation of any term of any
employment contract, patent disclosure agreement,
non-competition agreement or any restrictive covenant to a
former employer relating to the right of any such employee to
be employed by the Company because of the nature of the
business conducted or presently proposed to be conducted by
the Company or to the use of trade secrets or proprietary
information of others or (B) has given notice to the Company,
nor is the Company otherwise aware that any key employee
intends to terminate his or her employment with the Company.
(v) Governmental Authorization. The Company possesses
all material consents, licenses, permits, grants or other
authorizations issued to the Company by a Governmental Entity
(A) pursuant to which the Company currently operates or holds
any interest in any of its properties or (B) which is required
for the operation of its business or the holding of any such
interest, other than such consents, licenses, permits, grants
or authorizations the failure to obtain which would not,
either individually or in the aggregate, have an Adverse
Effect ("Company Authorizations"), which Company
Authorizations are in full force and effect and constitute all
Company Authorizations required to permit the Company to
operate or conduct its business or hold any interest in its
properties or assets and each such Company Authorization is
listed on Section 5.01(r)(v) of the Disclosure Schedule.
(s) Employee Benefits.
(i) Employee Plans. Section 5.01(s)(i) of the
Disclosure Schedule sets forth a list identifying each
"employee pension benefit plan" as defined in Section 3(2) of
the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), including any "multiemployer plan", as
defined in Section 3(37) of ERISA, (the "Pension Plans") and a
list identifying each "employee welfare benefit plan", as
defined in Section 3(1) of ERISA, (the "Welfare Plans") that,
in either case, are maintained, administered or contributed to
by the Company, or which cover any employee or former employee
of the Company. Collectively,
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the Pension Plans and Welfare Plans are hereinafter referred
to as the "Employee Plans". No Employee Plan is maintained,
administered or contributed to by any entity other than the
Company, and no Employee Plan is maintained under any trust
arrangement which covers any employee benefit arrangement
which is not an Employee Plan.
(ii) Delivery of Copies of Plans, Documents, etc. The
Company has delivered or has caused to be delivered or
otherwise made available to Fiserv and Fiserv Solutions true
and complete copies of (A) the Employee Plans (including
related trust agreements, custodial agreements, insurance
contracts, investment contracts and other funding
arrangements, if any, and adoption agreements, if any), (B)
any amendments to the Employee Plans, (C) any written
interpretations of the Employee Plans, (D) material employee
communications by the plan administrator of any Employee Plan
(including, but not limited to, summary plan descriptions and
summaries of material modifications, as defined under ERISA),
(E) the two most recent annual reports (e.g., the complete
Form 5500 series) prepared in connection with each Employee
Plan (if such report was required), including all attachments
(including the audited financial statements, if any) and (F)
the two most recent actuarial valuation reports prepared in
connection with each Employee Plan (if any such report was
required).
(iii) No Change in Benefits. Since December 31, 2001,
there has been no amendment to, written interpretation or
announcement (whether or not written) by the Company relating
to, or change in employee participation or coverage under any
Employee Plan that would increase materially the expense of
maintaining such Employee Plan above the level of expense
incurred in respect of such Employee Plan for the most recent
plan year with respect to Employee Plans. The execution of
this Agreement and the consummation of the transactions
contemplated hereby do not and will not constitute an event
under any Employee Plan, which either alone or upon the
occurrence of a subsequent event will or may result in any
payment, acceleration, vesting or increase in benefits to any
employee, former employee or director of the Company.
(iv) Compliance. Each Employee Plan has been maintained
by the Company in material compliance with its terms and the
requirements prescribed by any and all statutes, orders, rules
and regulations, including but not limited to, ERISA and the
Internal Revenue Code of 1986, as amended (the "Code"), which
are applicable to such Employee Plan.
(v) Qualification, etc. Each Pension Plan is
"qualified" within the meaning of Section 401(a) of the Code,
and has been qualified during the period from the date of its
adoption to the date of this Agreement, and each trust created
thereunder is tax-exempt under Section 501(a) of the Code. The
Company has delivered or caused to be delivered to Fiserv and
-23-
Fiserv Solutions the latest determination letter of the
Internal Revenue Service relating to each Pension Plan. Such
determination letters have not been revoked. Furthermore,
there are no pending proceedings or, to the knowledge of the
Company, threatened proceedings in which the "qualified"
status of any Pension Plan is at issue and in which revocation
of the determination letter has been threatened. Each such
Pension Plan has not been amended or operated by the Company,
since the receipt of the most recent determination letter, in
a manner that would adversely affect the "qualified" status of
the Plan. No distributions have been made from any of the
Pension Plans that would violate in any respect the
restrictions under Treasury Regulation Section
1.401(a)(4)-5(b), and none will be made prior to the Effective
Time.
(vi) No Claims. There are no pending or, to the
knowledge of the Company, threatened (A) claims, charges,
suits or other proceedings by any employees, former employees
or plan participants or the beneficiaries, spouses or
representatives of any of them against any Employee Plan, the
assets held thereunder, the trustee of any such assets or the
Company relating to any of the Employee Plans, other than
ordinary and usual claims for benefits by participants or
beneficiaries, or (B) suits, charges, investigations or other
proceedings by any federal, state, local or other governmental
agency or authority, of or against any Employee Plan, the
assets held thereunder, the trustee of any such assets or the
Company relating to any of the Employee Plans. If any of the
actions described in this subsection are initiated prior to
the Effective Time, the Company shall notify Fiserv of such
action prior to the Effective Time.
(vii) No Prohibited Transactions. The Company has not
engaged (A) in any transaction or acted or failed to act in a
manner that violates the fiduciary requirements of Section 404
of ERISA, or (B) in any "prohibited transaction" within the
meaning of Section 406(a) or 406(b) of ERISA, or of Section
4975(c) of the Code, with respect to any Employee Plans, and
will not so engage, act or fail to act prior to the Effective
Time. Furthermore, to the knowledge of the Company, no other
"party in interest", as defined in Section 3(14) of ERISA, or
"disqualified person", as defined in Section 4975(e)(2) of the
Code, has engaged in any such "prohibited transaction".
(viii) No Liability. No liability has been incurred by
the Company or by a trade or business, whether or not
incorporated, which is deemed to be under common control or
affiliated with the Company within the meaning of Section 4001
of ERISA or Section 414(b), (c), (m) or (o) of the Code (an
"ERISA Affiliate") for any Tax, penalty or other liability
with respect to any Employee Plan and, to the knowledge of the
Company, such Plans do not expect to incur any such liability
prior to the Effective Time.
-24-
(ix) Required Contributions. The Company has made all
required contributions under each Pension Plan on a timely
basis or, if not yet due, adequate accruals therefore have
been provided for in the financial statements. No Pension Plan
has incurred any "accumulated funding deficiency" within the
meaning of Section 302 of ERISA or Section 412 of the Code and
no Pension Plan has applied for or received a waiver of the
maximum funding standards imposed by Section 412 of the Code.
(x) PBGC. Except for required premium payments, no
liability to the Pension Benefit Guaranty Corporation (the
"PBGC") has been incurred by the Company with respect to any
Pension Plan that has not been satisfied in full, and no event
has occurred and there exists no condition or set of
circumstances that could result in the imposition of any such
liability. The Company has complied, or will comply, with all
requirements for premium payments, including any interest and
penalty charges for late payment, due or to be due to PBGC on
or before the Effective Time with respect to each Pension Plan
for which any premiums are required. No proceedings to
terminate, pursuant to Section 4042 of ERISA, have been
instituted or, to the knowledge of the Company, are threatened
by the PBGC with respect to any Pension Plan (or any Pension
Plan maintained by an ERISA Affiliate). There has been no
termination or partial termination, as defined in Section
411(d) of the Code and the regulations thereunder, of any
Pension Plan. No reportable event, within the meaning of
Section 4043 of ERISA, has occurred with respect to any
Pension Plan.
(xi) Benefit Obligations. No Pension Plan is covered by
Title IV of ERISA.
(xii) No Multiemployer Plan. Neither the Company nor any
ERISA Affiliate has ever maintained, adopted or established,
contributed or been required to contribute to, or otherwise
participated or been required to participate in, nor will they
become obligated to do so prior to the Effective Time, any
"multiemployer plan" (as defined in Section 3(37) of ERISA).
No amount is due from, or owed by, the Company or any ERISA
Affiliate on account of a "multiemployer plan" (as defined in
Section 3(37) of ERISA) or on account of any withdrawal
therefrom.
(xiii) No Post-Retirement Benefits. No Employee Plan
provides benefits, including any severance or other
post-employment benefit, salary continuation, termination,
death, disability or health or medical benefits (whether or
not insured), life insurance or similar benefit with respect
to current or former employees (or their spouses or
dependents) of the Company beyond their retirement or other
termination of service other than (A) coverage mandated by
applicable law, (B) death, disability or retirement benefits
under any Pension Plan, (C) deferred compensation
-25-
benefits accrued as liabilities on the Company Financial
Statements, (D) benefits, the full cost of which is borne by
the current or former employee (or his or her beneficiary) or
(E) as expressly contemplated by this Agreement.
(xiv) COBRA. The Company has complied with, and
satisfied, the requirements of Part 6 of Subtitle B of Title I
of ERISA and Section 4980(B) of the Code, and all regulations
thereunder ("COBRA") with respect to each Employee Plan that
is subject to the requirements of COBRA. Each Employee Plan
that is a group health plan within the meaning of Section
9832(a) of the Code, as maintained by the Company, has
complied with and satisfied the applicable requirements of
Sections 9801 and 9802 of the Code.
(t) Insurance. The Disclosure Schedule summarizes the amount
and kinds of insurance as to which the Company has insurance policies,
contracts or fidelity bonds relating to the business or operations of
the Company. All such insurance policies, contracts and bonds are in
full force and effect. All such insurance policies, contracts and
bonds covering the assets, business, equipment, properties,
operations, employees, officers and directors of the Company contain
provisions which, to the knowledge of the Company, are reasonable and
customary in the Company's industry, and there is no claim by the
Company pending under any of such policies or bonds as to which
coverage has been questioned, denied or disputed by the underwriters
of such policies or bonds. All premiums due and payable under all such
policies, contracts and bonds have been paid and the Company is
otherwise in compliance in all material respects with the terms of
such policies, contracts and bonds (or other policies, contracts and
bonds providing substantially similar insurance coverage). No notice
of cancellation or termination of any such insurance policies,
contracts or bonds has been given to the Company by the carrier of any
such policy, contract or policy.
(u) Bank Accounts. Section 5.01(u) of 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.
(v) Minute Books. The minute books and stock books or share
ledgers, as the case may be, of the Company made available to Fiserv
and Fiserv Solutions are the only minute books and stock books or
share ledgers, as the case may be, of the Company and contain a
reasonably accurate summary of all meetings of directors (including
committees thereof) and shareholders or actions by written consent and
of all transactions in the capital stock of the Company since the time
of incorporation of the Company.
-26-
(w) Taxes.
(i) Compliance Generally. The Company (A) has duly and timely
filed or caused to be filed with the appropriate authorities all Tax
Returns of, related to or including the Company, including its income,
assets, payroll or operations, and properly included the items related
thereto in such Tax Returns, which Tax Returns are true, correct and
complete, and (B) has duly and timely paid or caused to be paid to the
appropriate authorities all Taxes that are due and payable on or
before the date hereof, and has properly accrued on its books and
records in accordance with GAAP any Tax which not then due. The
Company has complied with all applicable laws, rules and regulations
relating to the reporting, payment, collection and withholding of
Taxes and has duly and timely collected or withheld and paid over to
the appropriate authorities all amounts required to be so collected or
withheld and paid over under all applicable laws. All Taxable years or
periods for the assessment of Taxes are closed either by agreement
with the applicable Taxing authority or by operation of the normal
statute of limitations or, if not yet closed, will close by operation
of the normal statute of limitations for such Tax Returns (without
extension). Section 5.01(w)(i) of the Disclosure Schedule sets forth a
list of each jurisdiction where the Company files a Tax Return and the
type of Tax Returns filed during the past five years. The Company has
made available for review by Fiserv and Fiserv Solutions true, correct
and complete copies of all Tax Returns filed by or with respect to the
Company during the past five years and of all correspondence to or
from a Taxing authority relating thereto and with respect to any
Proceeding (as hereinafter defined).
(ii) No Adjustments. No Taxing authority has asserted any
adjustment that would result in an additional Tax of the Company which
has not been fully paid or which adjustment, if asserted, would apply
to any other period. No such adjustment is pending or, to the
knowledge of the Company, being considered. There is no pending audit,
examination, investigation, dispute, proceeding or claim
(collectively, a "Proceeding") relating to any Tax of the Company,
and, to the knowledge of the Company, no Taxing authority is
contemplating such a Proceeding.
(iii) No Other Arrangements. The Company is not a party to any
agreement, contract or arrangement for services 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 bond financed property" or "tax-exempt use property"
within the meaning of Section 168(g) or (h), respectively, of the
Code. The Company has not entered into any sale-leaseback or leveraged
lease transaction. None of the assets of the Company is required to be
treated as being owned by any
-27-
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. The Company has never
made or been required to make an election under Section 338 of the
Code. The Company has never been included in a consolidated, combined
or unitary Tax Return. The Company is not and has never been a party
to any Tax sharing or Tax allocation agreement, arrangement or
understanding. No Tax authority has ever asserted that the Company
should file a Tax Return in a jurisdiction where it does not file. The
Company does not have outstanding any closing agreement, ruling
request, request for consent to change a method of accounting,
subpoena or request for information with or by any Taxing authority in
connection with any Tax matter. There is no outstanding power of
attorney authorizing anyone to act on behalf of the Company in
connection with any Tax, Tax Return or Proceeding relating to any Tax.
The Company is not required to include any adjustment under Section
481 of the Code (or any similar provision of applicable law) in income
for any period (or portion of a period) ending after the Closing Date.
During the last two years the Company has not engaged in any exchange
with a related party (within the meaning of Section 1031(f) of the
Code) under which gain realized was not recognized by reason of
Section 1031 of the Code.
(iv) Taxes Defined. For purposes of this Agreement, "Taxes" means
all federal, state, local and foreign taxes, charges, fees, levies,
deficiencies or other assessments of whatever kind or nature
(including all net income, gross income, gross receipts, sales, use,
ad valorem, transfer, franchise, profits, built-in gains, license,
withholding, payroll, employment, unemployment, excise, estimated,
severance, stamp, occupation, real property, personal property,
intangible property, occupancy, recording, minimum, environmental,
windfall profits or other taxes, customs, duties, fees, assessments or
charges of any kind whatsoever), including any liability therefor as a
transferee (including under Section 6901 of the Code), as a result of
Treasury Regulation Section 1.1502-6, or 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).
(v) Tax Return Defined. As used herein, "Tax Return" includes
any return, declaration, report, claim for refund or credit,
information return or statement, and any amendment to any of the
foregoing, including any consolidated, combined or unitary return or
other document (including any related or supporting information or
schedule), 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
-28-
laws, regulations or administrative requirements relating to Taxes or
ERISA.
(x) Related Party Transactions. Since January 1, 2000, no event has
occurred that would be required to be reported by the Company pursuant to
Item 404 of Regulation S-K promulgated by the SEC. There are no assets of
any Related Party that are used in or necessary to the conduct of the
business of the Company. "Related Party" means, with respect to any party,
any officer, director or beneficial owner of more than 5% of the
outstanding voting securities of such party (or any entity of which such
person is an officer, director or beneficial owner of more than 5% of such
entity's outstanding voting securities).
(y) Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by the Company
directly with Fiserv, Fiserv Solutions and Fiserv Sub, without the
intervention of any other person on behalf of the Company in such manner as
to give rise to any valid claim by any other person against the Company or
Fiserv, Fiserv Solutions or Fiserv Sub for a finder's fee, brokerage
commission or similar payment.
(z) Voting Requirements. The Company Shareholder Approval is the only
vote of the holders of the Company's capital stock required by law to
approve and adopt this Agreement and the transactions contemplated hereby.
(aa) Representations Complete. Except for the representations and
warranties contained in this Section 5.01, neither the Company nor any
Subsidiary or other person makes any other express or implied
representation or warranty on behalf of the Company or any or its
affiliates to Fiserv, Fiserv Solutions or Fiserv Sub.
SECTION 5.02 Representations and Warranties of Fiserv, Fiserv Solutions and
Fiserv Sub. Fiserv, Fiserv Solutions and Fiserv Sub each represents and warrants
to the Company as follows:
(a) Organization and Qualification, etc. Fiserv, Fiserv Solutions and
Fiserv Sub are corporations duly organized, validly existing and in good
standing under the laws of the State of Wisconsin, the State of Wisconsin
and the State of Florida, respectively, and each has corporate power and
authority to own its properties and assets and to carry on its business as
it is now being conducted. Each of Fiserv, Fiserv Solutions and Fiserv Sub
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. Each of Fiserv, Fiserv Solutions
and Fiserv Sub has the corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated on its part
hereby. The execution and delivery by Fiserv, Fiserv Solutions and Fiserv
Sub of this Agreement and the consummation by each of them of the
transactions
-29-
contemplated on its part hereby have been duly authorized by their
respective Board of Directors and, in the case of Fiserv Sub, its sole
shareholder. No other corporate proceedings on the part of Fiserv, Fiserv
Solutions or Fiserv Sub are necessary to authorize the execution and
delivery of this Agreement by Fiserv, Fiserv Solutions or Fiserv Sub or the
consummation by Fiserv, Fiserv Solutions or Fiserv Sub of the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
Fiserv, Fiserv Solutions and Fiserv Sub, and, assuming the due
authorization, execution and delivery at the Effective Time of this
Agreement by the Company, is their valid and binding agreement, enforceable
against Fiserv, Fiserv Solutions and Fiserv Sub, as applicable, 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).
(c) Non-Contravention. The execution and delivery of this Agreement
by Fiserv, Fiserv Solutions and Fiserv Sub do not and the consummation by
Fiserv, Fiserv Solutions and Fiserv Sub of the transactions contemplated
hereby will not (i) violate any provision of the Articles or Certificate of
Incorporation or By-laws of Fiserv, Fiserv Solutions or Fiserv Sub, as the
case may be, or (ii) 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 Fiserv,
Fiserv Solutions or Fiserv Sub pursuant to any provision of, any mortgage
or lien or material lease, agreement, license or instrument or any order,
arbitration award, judgment or decree to which Fiserv, Fiserv Solutions or
Fiserv Sub is a party or by which any of their respective assets is bound
and do not and will not violate or conflict with any other material
restriction of any kind or character to which Fiserv, Fiserv Solutions or
Fiserv Sub is subject or by which any of its assets may be bound, and the
same does not and will not constitute an event permitting termination of
any such mortgage or lien or material lease, agreement, license or
instrument to which Fiserv, Fiserv Solutions or Fiserv Sub is a party or
(iii) violate in any material respect any law, ordinance or regulation to
which Fiserv, Fiserv Solutions or Fiserv Sub 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, Fiserv Solutions or Fiserv Sub.
(d) Government Approvals. Except for (i) the filing of the Articles
of Merger with the Secretary of State of the State of Florida and (ii)
applicable requirements of the Exchange Act, state takeover or securities
laws and the rules of Nasdaq, no consent, authorization, order or approval
of, or filing or registration with, any governmental commission, board or
other regulatory body is required
-30-
for or in connection with the execution and delivery of this Agreement by
Fiserv, Fiserv Solutions and Fiserv Sub and the consummation by Fiserv,
Fiserv Solutions and Fiserv Sub of the transactions contemplated hereby,
except 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.
(e) Financial Ability. Fiserv has, and prior to the Closing will
provide to Fiserv Sub, sufficient cash available to enable it to consummate
the transactions contemplated by this Agreement.
(f) Capitalization of Fiserv Sub. The authorized capital stock of
Fiserv Sub consists of 1,000 shares of common stock, $.01 par value, of
which 100 shares are validly issued and outstanding, fully paid and
nonassessable and all of which are owned by Fiserv Solutions, which is, and
at the Effective Time will be, a wholly-owned subsidiary of Fiserv. Fiserv
Sub has not conducted any business prior to the date hereof and has no, and
prior to the Effective Time will have no, assets, liabilities or
obligations of any nature other than those incident to its formation and
pursuant to or in connection with this Agreement, the Merger and the other
transactions contemplated by this Agreement.
(g) Litigation and Liabilities. There are no civil, criminal or
administrative actions, suits, claims, hearings, investigations or
proceedings pending or, to the knowledge of Fiserv, threatened against
Fiserv, Fiserv Solutions, Fiserv Sub, or any of their respective
subsidiaries, which would prevent or materially impair the ability of
Fiserv, Fiserv Solutions or Fiserv Sub to consummate the Merger or any of
the other transactions contemplated by this Agreement.
(h) Compliance with Laws. The business of Fiserv, Fiserv Solutions,
Fiserv Sub and their respective subsidiaries, taken as a whole, is not
being conducted in violation of any laws, except for violations that would
not prevent or materially impair the ability of Fiserv, Fiserv Solutions or
Fiserv Sub to consummate the transactions contemplated by this Agreement.
As of the date hereof, no investigation or review by any Governmental
Entity with respect to Fiserv, Fiserv Solutions, Fiserv Sub or any of their
respective subsidiaries is pending or, to the knowledge of Fiserv,
threatened, nor has any Governmental Entity indicated an intention to
conduct the same, except for those the outcome of which would not prevent
or materially impair the ability of Fiserv, Fiserv Solutions, Fiserv Sub or
their respective subsidiaries to consummate the transactions contemplated
by this Agreement. Fiserv, Fiserv Solutions, Fiserv Sub and their
respective subsidiaries each has all permits, licenses, franchises,
variances, exemptions, orders and other governmental authorizations,
consents and approvals from Governmental Entities necessary to conduct its
business as presently conducted, except for those the absence of which
would not prevent or materially impair the ability to consummate the Merger
and the other transactions contemplated by this Agreement.
-31-
(i) Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by Fiserv,
Fiserv Solutions and Fiserv Sub directly with the Company, without the
intervention of any person on behalf of Fiserv, Fiserv Solutions or
Fiserv Sub in such manner as to give rise to any valid claim by any
person against the Company or Fiserv, Fiserv Solutions or Fiserv Sub
for a finder's fee, brokerage commission or similar payment.
(j) No Other Representations or Warranties. Except for the
representations and warranties contained in this Section 5.02, none of
Fiserv, Fiserv Solutions, Fiserv Sub or any other person makes any
other express or implied representation or warranty on behalf of
Fiserv, Fiserv Solutions or Fiserv Sub to the Company.
ARTICLE VI
ADDITIONAL COVENANTS AND AGREEMENTS
SECTION 6.01 Conduct of Business. During the period from the date hereof to
the Effective Time, except as otherwise contemplated by this Agreement, the
Company shall use commercially reasonable efforts to conduct its operations
according to its ordinary and usual course of business and shall use
commercially reasonable efforts to preserve substantially intact its business
organization, keep available the services of its officers and employees and
maintain its present relationships with licensors, suppliers, distributors,
customers and others having significant business relationships with it. The
Company shall cause representatives of the Company to confer with
representatives of Fiserv, Fiserv Solutions and Fiserv Sub to keep them
reasonably informed with respect to the general status of the on-going
operations of the business of the Company. For purposes of this Article VI, the
term "Company" shall be deemed to include the Subsidiaries where relevant or
appropriate.
SECTION 6.02 Access to Information by Fiserv, Fiserv Solutions and Fiserv
Sub. Fiserv, Fiserv Solutions and Fiserv Sub shall, prior to the Effective Time,
be provided reasonable access to the business and properties of the Company and
information concerning its financial and legal condition that Fiserv, Fiserv
Solutions and Fiserv Sub deem reasonably necessary or advisable in connection
with the consummation of the transactions contemplated hereby, provided that
such access shall be during normal business hours and shall not interfere with
normal operations of the Company. The Company agrees to permit Fiserv, Fiserv
Solutions and Fiserv Sub and their authorized representatives, including
Deloitte & Touche LLP, to have or cause them to be permitted to have, after the
date hereof and until the Effective Time, reasonable access to the premises,
books and records of the Company during normal business hours, and the officers
of the Company will furnish Fiserv, Fiserv Solutions and Fiserv Sub with such
financial and operating data and other information with respect to the business
and properties of the Company as Fiserv, Fiserv Solutions and Fiserv Sub shall
from time to time reasonably request.
-32-
SECTION 6.03 Consents and Authorizations. As soon as practicable, each of
the parties hereto will commence to take all commercially reasonable action to
obtain all authorizations, consents, orders and approvals of all third parties
and of all federal, state and local regulatory bodies and officials which may be
or become necessary for its execution and delivery of, and the performance of
its obligations pursuant to, this Agreement and will cooperate fully with the
other parties in promptly seeking to obtain all such authorizations, consents,
orders and approvals.
SECTION 6.04 Non-Assignable Licenses, Leases and Contracts. The Company
shall use its commercially reasonable efforts to obtain and deliver to Fiserv,
Fiserv Solutions or Fiserv Sub, as the case may be, at or prior to the Effective
Time such consents or waivers as are required in order that any material
contract listed or required to be listed on the Disclosure Schedule which would
be breached or violated, or would give any other party the right to cancel the
same, as a result of the occurrence of the Merger hereunder, shall not be so
breached or violated or result in such right of cancellation. The Company shall
use its commercially reasonable efforts to obtain and deliver to Fiserv, Fiserv
Solutions or Fiserv Sub, as the case may be, at or prior to the Effective Time
such consents or waivers as shall be reasonably requested by Fiserv, Fiserv
Solutions or Fiserv Sub, as the case may be, for any non-material contracts
required or not required to be listed on the Disclosure Schedule which, as a
result of the occurrence of the Merger 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 6.05 Employee Matters. The employees of the Company shall continue
to be employees of the Surviving Corporation following the Merger, and except as
otherwise set forth in the Disclosure Schedule, such employment to be employment
at will. Thereafter, for so long as they are employed by the Surviving
Corporation, they shall be paid, depending on their duties and responsibilities,
in accordance with Fiserv's compensation policies with respect to its employees
generally. In addition, the Company's employee benefit plans shall be terminated
as soon as practicable after the Effective Time and the employees of the Company
shall be entitled to participate in the benefit plans that Fiserv maintains for
its employees, generally on the same terms and conditions as other employees of
Fiserv (except with respect to Fiserv's sabbatical policy and quarter century
retirement stock plan). For this purpose, each "year of service" with the
Company shall be treated as a "year of service" with Fiserv (except for Fiserv's
sabbatical policy and quarter century retirement stock plan).
SECTION 6.06 Taxes. The Company will duly and timely file all Tax Returns
required to be filed on or prior to the Effective Time, duly and timely pay all
Taxes required to be paid on or prior to the Effective Time and accrue on the
Company's books and records in accordance with GAAP any Tax of or relating to
the Company, its income, assets, payroll or operations which is not then due.
Such Tax Returns shall be true, correct and complete, shall be prepared on a
basis consistent with prior Tax Returns of the Company and shall not make, amend
or terminate any election or change any accounting method, practice or procedure
without Fiserv's prior written consent. The Company shall give Fiserv a copy of
each such Tax Return for its review and comments
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prior to filing. The Company shall duly and timely withhold or collect and pay
over to the proper governmental authority any Taxes required to be withheld or
collected by the Company on or before the Effective Time under all applicable
laws.
SECTION 6.07 Solicitation of Alternative Transaction.
(a) The Company will not, and will cause its Subsidiaries and its and
their officers, directors, employees, financial advisors, counsel,
representatives and agents (collectively, "Representatives") not to, (i)
directly or indirectly, solicit, initiate, encourage or otherwise
facilitate the making of an Acquisition Proposal (as hereinafter defined);
(ii) participate or engage in or encourage in any way negotiations or
discussions concerning, or provide any non-public information to, any
person or entity relating to an Acquisition Proposal, or which may
reasonably be expected to lead to an Acquisition Proposal; or (iii) agree
to or endorse any Acquisition Proposal; provided, however, that nothing
contained in this Section 6.07 or in any other provision of this Agreement
will prohibit the Company or the Company's Board of Directors from taking
and disclosing to the Company's shareholders a position contemplated by
Rule 14e-2 promulgated under the Exchange Act or from making any legally
required disclosure to the Company's shareholders.
(b) Notwithstanding the provisions of Section 6.07(a), this Agreement
will not prohibit the Company's Board of Directors from, prior to obtaining
the Company shareholder approvals set forth in Section 7.01(b), furnishing
nonpublic information to or entering into discussions or negotiations with,
any person or entity that makes an unsolicited Superior Proposal (as
hereinafter defined), if, and only to the extent that: (i) the failure of
the Company's Board of Directors to take action with respect to such
Superior Proposal would be a breach of the Board's fiduciary duties imposed
by applicable law; (ii) prior to first furnishing nonpublic information to,
or first entering into substantive discussions and negotiations with, such
person or entity after the date hereof, the Company (A) provides written
notice of at least three business days to Fiserv to the effect that it
intends to furnish information to, or enter into discussions or
negotiations with, such person or entity, and naming and identifying the
person or entity making the Acquisition Proposal, and (B) receives from
such person or entity an executed confidentiality agreement; and (iii) the
Company concurrently provides Fiserv with all non-public information to be
provided to such person or entity that Fiserv has not previously received
from the Company, and the Company keeps Fiserv reasonably informed of the
status and the material terms and conditions and all other material
information with respect to any such discussions or negotiations.
"Acquisition Proposal" shall mean any offer or proposal for (i) a
transaction or series of related transactions pursuant to which (A) any
person or entity who does not currently own 15% or more of the outstanding
shares of Company Common Stock (a "Non-Affiliated Person") acquires 15% or
more of the outstanding shares of Company Common Stock, including without
limitation a tender offer or an exchange offer which, if consummated, would
result in any
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Non-Affiliated Person acquiring 15% or more of the outstanding shares of
Company Common Stock, or (B) any person or entity who currently owns more
than 15% of the outstanding shares of Company Common Stock (a "Current
Affiliated Person") acquires 50% or more of the outstanding shares of
Company Common Stock, including without limitation a tender offer or an
exchange offer which, if consummated, would result in any Current
Affiliated Person acquiring 50% or more of the outstanding shares of
Company Common Stock; provided, however, that no transfer of Company Common
Stock permitted by the terms of the Agreement to Facilitate Merger (as
hereinafter defined) shall be deemed to constitute an Acquisition Proposal
or to breach or violate the provisions of this Agreement, (ii) a merger or
other business combination involving the Company pursuant to which any
Non-Affiliated Person acquires securities representing 15% or more, or a
Current Affiliated Person acquires securities representing 50% or more, of
the aggregate voting power of all outstanding securities of the company
surviving the merger or business combination, or (iii) any other
transaction pursuant to which any person or entity acquires control of
assets (including for this purpose the outstanding equity securities of any
Company Subsidiary) of the Company having a fair market value equal to 15%
or more of the fair value of all of the assets of the Company immediately
prior to such a transaction.
"Superior Proposal" shall mean a bona fide Acquisition Proposal that
the Board of Directors of the Company has reasonably and in good faith
determined, after consultation with its financial advisors and outside
counsel, to be more favorable to the Company's shareholders than the
Merger.
(c) The Company agrees that it will notify Fiserv within three (3)
business days if it or any of its Representatives receives an Acquisition
Proposal or any inquiry reasonably likely to lead to a Acquisition Proposal
or if any discussions or negotiations are sought to be initiated or
continued with the Company or its Representatives concerning an Acquisition
Proposal, and such notification will contain the name of the person or
entity involved and the material terms and conditions of such an
Acquisition Proposal.
(d) Upon execution of this Agreement, the Company will immediately
terminate all discussions with any person or entity (other than Fiserv and
its subsidiaries) concerning any Acquisition Proposal, and will request
that such person or entities promptly return any confidential information
furnished by the Company in connection with any Acquisition Proposal. The
Company will not waive any provision of any confidentiality, standstill or
similar agreement entered into with any person or entity regarding any
Acquisition Proposal, and prior to the Closing will enforce all such
agreements in accordance with their terms.
(e) Nothing contained in this Section 6.07 shall (i) permit the
Company to terminate this Agreement (except as specifically provided in
Article VIII hereof), or (ii) permit the Company to enter into any
agreement providing for an Acquisition Proposal (other than the
confidentiality agreement as
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provided, and in the circumstances and under the conditions set forth,
above) for as long as this Agreement remains in effect.
SECTION 6.08 Proxy Material.
(a) As promptly as practicable after the execution of this Agreement,
the Company shall prepare and file with the SEC a proxy statement relating
to the meeting of the Company's shareholders to be held in connection with
the Merger (together with any amendments thereof or supplements thereto, in
each case in the form or forms mailed to the Company's shareholders, the
"Proxy Statement"). Each of Fiserv, Fiserv Solutions, Fiserv Sub and the
Company shall furnish all information concerning it and the holders of its
capital stock as the other may reasonably request in connection with such
actions and the preparation of the Proxy Statement. As promptly as
practicable, the Company shall mail the Proxy Statement to its
shareholders. No amendment or supplement to the Proxy Statement will be
made by the Company without the approval of Fiserv (which approval shall
not be unreasonably withheld, delayed or conditioned). The Company will
advise Fiserv, promptly after it receives notice thereof, of any request by
the SEC for amendment of the Proxy Statement or comments thereon and
responses thereto or requests by the SEC for additional information.
(b) The information supplied by Fiserv, Fiserv Solutions and Fiserv
Sub for inclusion in the Proxy Statement shall not, at (i) the time the
Proxy Statement (or any amendment thereof or supplement thereto) is first
mailed to the shareholders of the Company, (ii) the time of the Company
Special Meeting, and (iii) the Effective Time, contain (as to Fiserv,
Fiserv Solutions, Fiserv Sub and their respective subsidiaries or their
respective officers and directors) 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 not misleading. If at any
time prior to the Effective Time any event or circumstance relating to
Fiserv, Fiserv Solutions, Fiserv Sub or their respective subsidiaries, or
their respective officers or directors, should be discovered by Fiserv,
Fiserv Solutions or Fiserv Sub which should be set forth in an amendment or
a supplement to the Proxy Statement, Fiserv shall promptly inform the
Company.
(c) The information supplied by the Company for inclusion in the
Proxy Statement shall not, at (i) the time the Proxy Statement (or any
amendment thereof or supplement thereto) is first mailed to the
shareholders of the Company, (ii) the time of the Company Special Meeting,
and (iii) the Effective Time, contain (as to the Company and each of its
Subsidiaries) 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 not misleading. If at any time prior to the
Effective Time any event or circumstance relating to the Company or any of
its Subsidiaries, or their respective officers or directors, should be
discovered by the Company which should be set forth in an amendment or a
supplement to the Proxy Statement, the Company shall promptly inform
Fiserv. All documents that the Company is responsible for filing with the
SEC in
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connection with the transactions contemplated herein will comply as to
form and substance in all material respects with the applicable
requirements of the Exchange Act.
SECTION 6.09 Shareholders' Meetings.
(a) The Company shall, in accordance with applicable law and its
Amended and Restated Articles of Incorporation and Amended and
Restated Bylaws, duly call, give notice of, convene and hold a special
meeting (which, as may be duly adjourned, the "Company Special
Meeting") of its shareholders for the purpose of approving and
adopting the plan of merger (as such term is used in Section 607.1101
et seq. of the Florida Law) set forth in this Agreement and approving
the Merger by the Company Shareholder Approval. The Company agrees to
use its commercially reasonable efforts to cause the Company Special
Meeting to occur as soon as practicable after the date hereof, but not
earlier than 20 business days after the date the Proxy Statement is
first mailed to its shareholders. The Company shall use reasonable
best efforts to obtain the adoption and approval by the Company's
shareholders of this Agreement and the approval by the Company's
shareholders of the Merger, unless otherwise required under applicable
law in order for the Board of Directors to comply with its applicable
fiduciary duties to its shareholders imposed by law. The Board of
Directors of the Company will, subject to Section 6.09(b), recommend
the adoption and approval by the Company's shareholders of this
Agreement and the approval by the Company's shareholders of the
Merger.
(b) The Board of Directors of the Company may not withdraw, or
modify in a manner adverse to Fiserv, Fiserv Solutions or Fiserv Sub,
its recommendation to its shareholders referred to in subsection (a)
above unless (i) the Company has complied with the terms of Section
6.07 in all material respects, including, without limitation, the
requirement in Section 6.07 that it notify Fiserv after its receipt of
any Acquisition Proposal, and (ii) such withdrawal or modification is
required under applicable law in order for the Board of Directors of
the Company to comply with its fiduciary duties.
SECTION 6.10 State Takeover Statutes. The Company and its Board of
Directors shall (a) take all commercially reasonable actions necessary to ensure
that neither Section 607.0901 nor Section 607.0902 of the Florida Law is or
becomes applicable to this Agreement or the Agreement to Facilitate Merger, the
Merger or any of the other transactions contemplated hereby or thereby and (b)
if either of such statutes becomes applicable to this Agreement or the Agreement
to Facilitate Merger, the Merger or any other transaction contemplated hereby or
thereby, take all commercially reasonable action necessary to ensure that the
Merger, and the other transactions contemplated hereby and thereby, may be
consummated as promptly as practicable on the terms contemplated hereby and
otherwise to minimize the effect of such statute or regulation on the Merger and
the other transactions contemplated hereby and thereby.
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SECTION 6.11 Shareholder Litigation. Subject to any confidentiality
obligations and the preservation of any attorney-client privilege, the parties
shall cooperate and consult with one another, to the fullest extent reasonably
possible, in connection with any shareholder litigation against any of them or
any of their respective directors or officers with respect to the transactions
contemplated by this Agreement. In furtherance of and without in any way
limiting the foregoing, each of the parties shall use its respective
commercially reasonable efforts to prevail in such litigation so as to permit
the consummation of the transactions contemplated by this Agreement in the
manner contemplated by this Agreement. Notwithstanding the foregoing, the
Company shall not compromise or settle any litigation commenced against it or
its directors or officers relating to this Agreement or the transactions
contemplated hereby (including the Merger) without Fiserv's prior written
consent (which consent shall not be unreasonably withheld, delayed or
conditioned).
SECTION 6.12 Confidentiality. Fiserv, Fiserv Solutions, Fiserv Sub and
their respective subsidiaries on the one hand and the Company on the other hand
will comply with, and will cause their respective representatives to comply
with, in all respects, all of their respective obligations under the
Confidentiality Agreement dated as of February 11, 2002 (the "Confidentiality
Agreement") between Fiserv and the Company, and in no event, will the
negotiation, entering into or termination of this Agreement be deemed to waive
or otherwise adversely affect the rights and obligations of the parties under
the Confidentiality Agreement, which rights and obligations will continue in
full force and effect in accordance with their terms.
SECTION 6.13 Further Actions. Subject to the terms and conditions
herein provided and without being required to waive any conditions herein
(whether absolute, discretionary, or otherwise), each of the parties hereto
agrees to use all commercially reasonable efforts to take, or cause to be taken,
all action, and to do, or cause to be done, all things necessary, proper, or
advisable to consummate and make effective the transactions contemplated by this
Agreement. In case at any time after the Effective Time any further action is
necessary or desirable to carry out the purposes of this Agreement, the proper
officers and directors of each party to this Agreement will take all such
necessary action.
SECTION 6.14 Notification of Certain Matters. The Company will give
prompt written notice to Fiserv, and Fiserv will give prompt written notice to
the Company, of (a) the occurrence, or nonoccurrence, of any event the
occurrence, or nonoccurrence, of which would be likely to cause any
representation or warranty contained herein to be untrue or inaccurate in any
material respect at or prior to the Effective Time and (b) any material failure
of the Company or Fiserv, Fiserv Solutions or Fiserv Sub, as the case may be, to
comply with or satisfy any covenant, condition or agreement to be complied with
or satisfied by it hereunder; provided, however, that the delivery of any notice
pursuant to this Section 6.14 will not limit or otherwise affect the remedies
available hereunder to the party receiving such notice.
SECTION 6.15 Voting of Shares. To induce Fiserv to execute this
Agreement, the Principal Shareholders have executed and delivered as of the date
hereof an
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Agreement to Facilitate Merger substantially in the form attached as
Exhibit B hereto (the "Agreement to Facilitate Merger"), pursuant to which
each such Principal Shareholder has agreed to vote its shares of Company
Common Stock in favor of the Merger at the Company Special Meeting.
SECTION 6.16 Indemnification.
(a) The Articles of Incorporation and the Bylaws of the Surviving
Corporation shall contain the provisions with respect to
indemnification and exculpation from liability set forth in the
Company's Amended and Restated Articles of Incorporation and Amended
and Restated Bylaws on the date of this Agreement, which provisions
shall not be amended, repealed or otherwise modified in any manner
that would adversely affect the rights thereunder of individuals who
on or prior to the Effective Time were directors, officers, employees
or agents of the Company or its Subsidiaries. This Section 6.16(a)
shall not limit or otherwise adversely affect any rights any
Indemnified Person may have under any agreement with the Company or
under the Company's Amended and Restated Certificate of Incorporation
and Amended and Restated Bylaws.
(b) After the Effective Time, the Surviving Corporation shall
indemnify, defend and hold harmless (and shall also advance expenses
as incurred to the fullest extent permitted under applicable law to)
each person who is or has been prior to the date hereof or who becomes
prior to the Effective Time an officer or director of the Company or
any of its Subsidiaries (the "Indemnified Persons") against (a) all
losses, claims, damages, costs, expenses (including, without
limitation, reasonable counsel fees and expenses), settlement payments
or liabilities arising out of or in connection with any claim, demand,
action, suit, proceeding or investigation based in whole or in part on
or arising in whole or in part out of the fact that each person is or
was an officer or director of the Company or any of its subsidiaries
whether or not pertaining to any matter existing or occurring at or
prior to the Effective Time and whether or not asserted or claimed
prior to or at or after the Effective Time ("Indemnified Liabilities")
and (b) all Indemnified Liabilities based in whole or in part on or
arising in whole or in part out of or pertaining to this Agreement or
the transactions contemplated hereby, in each case to the fullest
extent required or permitted under applicable law or under the
Surviving Corporation's Articles of Incorporation or Bylaws, as
amended and/or restated, but not in excess of that permitted by
applicable law. The parties thereto intend, to the extent not
prohibited by applicable law, that the indemnification provided for in
this Section 6.16(b) shall apply without limitation to negligent acts
or omissions by an Indemnified Person. Fiserv and Fiserv Solutions,
jointly and severally, hereby guarantee the payment and performance of
the Surviving Corporation's obligations in this Section 6.16 and
Section 6.17. Each Indemnified Person is intended to be a third-party
beneficiary of this Section 6.16 and Section 6.17 and may specifically
enforce their terms. This Section 6.16 shall not limit or otherwise
adversely affect any rights any Indemnified Person may have under any
agreement with the Company or under
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the Company's Amended and Restated Articles of Incorporation and
Amended and Restated Bylaws.
(c) The obligations of the Company and the Surviving Corporation
contained in this Section 6.16 and Section 6.17 shall be binding on
the successors and assigns of the Surviving Corporation. If Fiserv,
Fiserv Solutions, the Surviving Corporation or any of their successors
or assigns (i) consolidates with or merges into any other person and
shall not be the continuing or surviving corporation or entity of such
consolidation or merger or (ii) transfers all or substantially all of
its properties and assets to any person, then and in each such case,
proper provisions shall be made so that the successors and assigns of
Fiserv, Fiserv Solutions or the Surviving Corporation, as the case may
be, shall assume the obligations set forth in this Section 6.16 and
Section 6.17.
SECTION 6.17 Officer and Director Insurance. Immediately prior to the
Effective Time, the Company shall obtain "tail insurance coverage" to continue
in effect following the Effective Time the coverage currently provided to
current and former directors and officers of the Company, and naming BIG as an
additional insured. The Surviving Corporation shall not cancel such coverage at
any time before December 31, 2004. The Company shall pay half the premium for
the "tail insurance coverage" and, as provided in the Agreement to Facilitate
Merger (as hereinafter defined), BIG shall pay the other half, plus any
additional premium payable in respect of naming it as an additional insured.
SECTION 6.18 Deposit of Aggregate Merger Consideration. Prior to the
Closing, Fiserv shall deposit, or cause to be deposited, with the Paying Agent
an amount of cash sufficient to satisfy the obligations to pay the Merger
Consideration as provided in Article III hereof, except any obligations to pay
Merger Consideration to the parties to the Agreement to Facilitate Merger, dated
the date hereof, by and among Fiserv, Fiserv Solutions, Fiserv Sub and the
Principal Shareholders, in substantially the form and to the effect set forth in
Exhibit B hereto (the "Agreement to Facilitate Merger").
ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.01 Conditions to Obligations of Fiserv, Fiserv Solutions,
Fiserv Sub, and the Company. The respective obligations of each party to
consummate the Merger shall be subject to the fulfillment at or prior to the
Closing of the following conditions:
(a) No Injunction. None of Fiserv, Fiserv Solutions, Fiserv Sub,
or the Company shall be subject to any final order, decree or
injunction of a court of competent jurisdiction within the United
States that (i) prevents the consummation of the Merger or (ii) would
impose any material limitation on the ability of Fiserv Solutions
effectively to exercise full rights of ownership of the Company or the
assets or business of the Company.
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(b) Shareholder Approval.
(i) The approval of the shareholders of the Company hereof
shall have been obtained, in accordance with the Florida Law and
the Company's Amended and Restated Certificate of Incorporation
and Amended and Restated Bylaws.
(ii) The approval of at least 50.01% of the outstanding
Shares that are not owned or controlled by those shareholders of
the Company who are parties to the Agreement to Facilitate Merger
shall have been obtained.
SECTION 7.02 Conditions Precedent to the Obligations of Fiserv, Fiserv
Solutions and Fiserv Sub. The obligations of Fiserv, Fiserv Solutions and Fiserv
Sub to consummate the Merger under this Agreement are subject to the
satisfaction or waiver by Fiserv, Fiserv Solutions and Fiserv Sub prior to or at
the Effective Time of each of the following conditions:
(a) Accuracy of Representations and Warranties. The
representations and warranties of the Company contained in Section
5.01 of this Agreement shall be true and correct at and as of the
Effective Time as though made at and as of that time other than such
representations and warranties as are specifically made as of another
date (provided, however, that this condition shall be deemed satisfied
unless all inaccuracies in such representations and warranties
(considered collectively) would reasonably be expected to have a
Material Adverse Effect on the Company or would prevent the Company
from consummating the Merger), and the Company shall have delivered to
Fiserv, Fiserv Solutions and Fiserv Sub a certificate of an authorized
officer of the Company to that effect.
(b) Compliance with Covenants. The Company shall have performed
and complied in all material respects with all covenants of this
Agreement to be performed or complied with by it at or prior to the
Effective Time, and the Company shall have delivered to Fiserv, Fiserv
Solutions and Fiserv Sub a certificate of an authorized officer of the
Company to that effect.
(c) Opinion of Counsel for the Company. Fiserv, Fiserv Solutions
and Fiserv Sub shall have received an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇,
counsel to the Company, dated the Closing Date, substantially in the
form and to the effect set forth in Exhibit C annexed hereto.
(d) Legal Actions or Proceedings. No legal action or proceeding
shall have been instituted after the date hereof against the Company
or against Fiserv, Fiserv Solutions or Fiserv Sub, arising by reason
of the Merger pursuant to this Agreement, which would reasonably be
expected to have a Material Adverse Effect on the Company.
(e) Tax Matters. The Company shall have delivered to Fiserv and
Fiserv Solutions an executed FIRPTA Affidavit with respect to the
Company
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substantially in the form of Exhibit D annexed hereto, signed by the
Company under penalties of perjury.
(f) Consents. On or prior to the Effective Time, the Company shall
have obtained the consents or waivers to the Merger set forth in Exhibit E
annexed hereto.
(g) Supporting Documents. On or prior to the Effective Time, Fiserv,
Fiserv Solutions, Fiserv Sub and their counsel shall have received copies
of the following supporting documents:
(i) (A) copies of the Amended and Restated 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 Florida and
(B) a certificate of said Secretary dated as of a recent date as to
the active status (and good standing and as to tax status, if
available from such Secretary) of the Company; and
(ii) certificates of the Secretary or an Assistant Secretary of
the Company, dated the Effective Time, and certifying substantially to
the effect: (A) that attached thereto is a true and complete copy of
the Amended and Restated Bylaws of the Company as in effect on the
date of such certification; (B) that attached thereto is a true and
complete copy of resolutions adopted by the Board of Directors
authorizing the execution, delivery and performance of this Agreement
and that all such resolutions and minutes are still in full force and
effect and are all the resolutions and minutes adopted in connection
with the transactions contemplated by this Agreement; and (C) 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).
SECTION 7.03 Conditions Precedent to the Obligations of the Company. The
obligations of the Company to consummate the Merger under this Agreement are
subject to the satisfaction or waiver by the Company prior to or at the
Effective Time of each of the following conditions:
(a) Accuracy of Representations and Warranties. The representations
and warranties of Fiserv, Fiserv Solutions and Fiserv Sub contained in
Section 5.02 of this Agreement shall be true and correct on and as of the
Effective Time as though made at and as of that date, other such
representations and warranties as are specifically made as of another date
(provided, however, that this condition shall be deemed satisfied unless
all inaccuracies in such representations and warranties (considered
collectively) would reasonably be expected to have a Material Adverse
Effect on Fiserv, Fiserv Solutions and Fiserv Sub collectively or would
prevent any of them from consummating the Merger),
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and Fiserv, Fiserv Solutions and Fiserv Sub shall each have delivered to
the Company a certificate of any authorized officer thereof to that effect.
(b) Compliance with Covenants. Each of Fiserv, Fiserv Solutions and
Fiserv Sub shall have performed and complied in all material respects with
all covenants of this Agreement to be performed or complied with by Fiserv,
Fiserv Solutions and/or Fiserv Sub on or prior to the Effective Time, and
Fiserv, Fiserv Solutions and Fiserv Sub shall each have delivered to the
Company and the Shareholders a certificate of an authorized officer thereof
to such effect.
(c) Opinion of Counsel for Fiserv, Fiserv Solutions and Fiserv Sub.
The Company shall have received an opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General
Counsel of Fiserv, dated the Closing Date, substantially in the form and to
the effect set forth in Exhibit F annexed hereto.
(d) Legal Actions or Proceedings. No legal action or proceeding shall
have been instituted which would reasonably be expected to have a Material
Adverse Effect on Fiserv, Fiserv Solutions or Fiserv Sub or prevent Fiserv,
Fiserv Solutions or Fiserv Sub from consummating the Merger or the other
transactions contemplated by this Agreement.
(e) Supporting Documents. On or prior to the Effective Time, the
Company shall have received copies of the following supporting documents:
(i) (A) copies of the Articles of Incorporation of Fiserv,
Fiserv Solutions and Fiserv Sub, and all amendments thereto, certified
as of a recent date by the Department of Financial Institutions of the
State of Wisconsin and the Secretary of State of the State of Florida,
respectively, (B) a certificate of said Department dated as of a
recent date as to the status of Fiserv and Fiserv Solutions and (C) a
certificate of said Secretary dated as of a recent date as to the
active status and due incorporation of Fiserv Sub; and
(ii) a certificate of the Secretary or an Assistant Secretary of
each of Fiserv, Fiserv Solutions and Fiserv Sub dated the Effective
Time and certifying substantially to the effect (A) that attached
thereto is a true and complete copy of the By-laws of the particular
company as in effect on the date of such certification; (B) that
attached thereto is a true and complete copy of resolutions adopted by
the Board of Directors of the particular 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; and (C) as to the incumbency and specimen signature
of each officer of the particular company executing this Agreement and
a certification by another officer of such company as to the
incumbency and signature of the officer singing the certificate
referred to in this paragraph (ii).
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ARTICLE VIII
TERMINATION; AMENDMENT; WAIVER
SECTION 8.01 Termination. This Agreement may be terminated and the Merger
may be abandoned at any time prior to the Effective Time:
(a) by mutual consent of Fiserv, Fiserv Solutions and Fiserv Sub, on
the one hand, and the Company, on the other hand;
(b) by either Fiserv, Fiserv Solutions and Fiserv Sub, on the one
hand, or the Company on the other hand, if (i) the Effective Time shall not
have occurred on or before the date that is six months from the date of
this Agreement (provided that the right to terminate this Agreement under
this Section 8.01(b) shall not available to any party whose failure to
fulfill, or cause to be fulfilled, any obligation under this Agreement has
been the cause of or resulted in the failure of the Effective Time to occur
on or before such time) or (ii) any court of competent jurisdiction or
other governmental body shall have issued an order, decree or ruling or
taken any other action (which order, decree or ruling the parties shall use
their commercially reasonable efforts to lift or reverse) permanently
restraining, enjoining or otherwise prohibiting the Merger and such order,
decree, ruling or other action shall have become final and nonappealable,
provided, however, if a proceeding shall have been initiated by a
Governmental Entity to restrain, enjoin or otherwise prohibit the Merger or
any other transaction contemplated by the Agreement, and such proceeding is
continuing on the date six months after the date referred to in clause
(b)(i) above, then either Fiserv, Fiserv Solutions and Fiserv Sub, on the
one hand, or the Company, on the other hand, may terminate this Agreement
and abandon the Merger provided that such terminating party shall have used
commercially reasonable efforts to cause any such proceeding to be
dismissed as to all parties thereto; or
(c) by either Fiserv, Fiserv Solutions and Fiserv Sub, on the one
hand, or the Company on the other hand, if the Company shareholder
approvals set forth in Section 7.01(b) are not received at the Company
Special Meeting; except that the right to terminate this Agreement under
this Section 8.01(c) will not be available to any party whose failure to
perform any material obligation under this Agreement has been the proximate
cause of, or resulted in, the failure to obtain the requisite vote of the
shareholders of the Company;
(d) by Fiserv, Fiserv Solutions and Fiserv Sub if either (i) the
Company has breached its obligations under Section 6.07 in any material
respect, (ii) the Board of Directors of the Company has recommended,
approved, accepted, or entered into an agreement regarding, a Superior
Proposal, (iii) the Board of Directors of the Company has withdrawn or
modified in a manner adverse to Fiserv its recommendation of the Merger, or
(iv) a tender offer or exchange offer for 15% or more of the outstanding
shares of Company Common Stock is commenced, and the Board of Directors of
the Company, within 10 business days after such tender offer or exchange
offer is so commenced, either
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fails to recommend against acceptance of such tender offer or exchange
offer by its shareholders or takes no position with respect to the
acceptance of such tender offer or exchange offer by its shareholders;
(e) by the Company prior to the Company shareholder approvals set
forth in Section 7.01(b) being obtained if (i) it is not in material breach
of its obligations under this Agreement and has complied with, and
continues to comply with, all requirements, conditions and procedures of
Section 6.07 in all material respects, (ii) the Board of Directors of the
Company has complied with, and continues to comply with, all requirements,
conditions and procedures of Section 6.07 in all material respects and has
authorized, subject to complying with the terms of this Agreement, the
Company to enter into a binding written agreement concerning a transaction
that constitutes a Superior Proposal and the Company notifies Fiserv in
writing that it intends to enter into such binding agreement, which notice
must have attached to it the most current version of such agreement, and
(iii) Fiserv does not make, within ten days after receipt of such notice
from the Company, any offer that the Board of Directors of the Company
reasonably and in good faith determines, after consultation with its
financial and legal advisors, is at least as favorable to the shareholders
of the Company as the Superior Proposal and during such ten-day period the
Company reasonably considers and discusses in good faith all proposals
submitted by Fiserv and, without limiting the foregoing, meets with, and
causes its financial advisors and legal advisors to meet with, Fiserv and
its advisors from time to time as requested by Fiserv to reasonably
consider and discuss in good faith Fiserv's proposals. The Company agrees
(x) that it will not enter into a binding agreement referred to in clause
(ii) above until at least the 11/th/ day after Fiserv has received the
notice to Parent required by clause (ii) above, and (y) to notify Fiserv
promptly if its intention to enter into the binding agreement included in
its notice to Fiserv shall change at any time after giving such notice;
(f) by Fiserv, Fiserv Solutions and Fiserv Sub if (i) Fiserv, Fiserv
Solutions and Fiserv Sub are not in material breach of their obligations
under this Agreement and (ii) there has been a material breach by the
Company of any of its representations, warranties, or obligations under
this Agreement such that the conditions in Section 7.02 cannot be
satisfied, and the breach is not curable or, if curable, is not cured by
the Company or such Principal Shareholder within 30 calendar days after
receipt by the Company of written notice from Fiserv of such breach;
(g) by the Company if (i) the Company is not in material breach of
its obligations under this Agreement and (ii) there has been a material
breach by Fiserv, Fiserv Solutions or Fiserv Sub of any of their
representations, warranties, or obligations under this Agreement such that
the conditions in Section 7.03 cannot be satisfied, and the breach is not
curable or, if curable, is not cured by Fiserv, Fiserv Solutions or Fiserv
Sub within 30 calendar days after receipt by Fiserv of written notice from
the Company of such breach.
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SECTION 8.02 Effect of Termination. In the event of the termination and
abandonment of this Agreement pursuant to Section 8.01, this Agreement shall
forthwith become void and have no effect, without any liability whatsoever on
the part of any party or its affiliates, directors, officers or shareholders,
other than pursuant to the provisions of this Section 8.02.
(a) Nothing contained in this Section 8.02 shall relieve any party
from liability for any willful breach of the covenants or agreements set
forth in this Agreement, and the Confidentiality Agreement shall survive
the termination and abandonment of this Agreement.
(b) In recognition of the time, efforts, and expenses expended and
incurred by Fiserv and its subsidiaries with respect to the Company and the
opportunity that the acquisition of the Company presents to Fiserv, if this
Agreement is (i) terminated pursuant to Section 8.01(c) or Section 8.01(d)
and within twelve (12) months of the date of such termination, the Company
shall have entered into an agreement for, or consummated, a transaction
described in the definition of "Acquisition Proposal", or (ii) terminated
pursuant to Section 8.01(e), then the Company shall pay to Fiserv a fee in
the amount of One Million Two Hundred Thousand Dollars ($1,200,000) (the
"Fee"), payable in the event of clause (i) above only upon the date such
transaction is consummated and payable in the event of clause (ii) above
upon the date that this Agreement is so terminated; provided, however, that
the Fee will not be owed to Fiserv by the Company in the event that the
Vote Fee (as defined in the Agreement to Facilitate Merger) is payable by
BIG upon termination of the Merger Agreement and is not otherwise payable
at such time by the Company. The Fee, if payable, shall be paid by wire
transfer of immediately available funds to an account designated by Fiserv
for such purpose. The Company acknowledges that the agreements contained in
this Section 8.02(b) are an integral part of the transactions contemplated
by this Agreement and are not a penalty, and that, without these
agreements, Fiserv would not enter into this Agreement. If the Company
fails to pay promptly the fee due pursuant to this Section 8.02(b), the
Company shall also pay to Fiserv Fiserv's and its subsidiaries' reasonable
costs and expenses (including reasonable legal fees and expenses) in
connection with any action, including the filing of any lawsuit or other
legal action, taken to collect payment.
SECTION 8.03 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of all the parties.
SECTION 8.04 Extension; Waiver. At any time prior to the Effective Time,
Fiserv, Fiserv Solutions and Fiserv Sub, on the one hand, or the Company on the
other hand, may (a) extend the time for the performance of any of the
obligations or other acts of the other party, (b) waive any inaccuracies in the
representations and warranties of the other party contained herein or in any
document, certificate or writing delivered pursuant hereto or (c) to the extent
permitted by applicable laws, waive compliance by the other party with any of
the agreements or conditions contained herein. Any agreement on the
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part of any party to any such extension or waiver shall be valid only if set
forth in an instrument in writing signed on behalf of such party.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Expenses, Etc. Whether or not the transactions contemplated by
this Agreement are consummated, none of the parties 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.
SECTION 9.02 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 9.03 Notices. All notices and other communications which are
required or may be given pursuant to the terms of this Agreement shall be in
writing, shall be effective when received, and shall in any event be deemed to
have been received (a) when delivered, if delivered personally or by commercial
delivery service, (b) five business days after deposit with the U.S. Mail, if
mailed by registered or certified mail (return receipt requested), (c) one
business day after the business day of timely deposit with a recognized national
courier service for next day delivery (or two business days after such deposit
if timely deposited for second business day delivery) or (d) one business day
after delivery by facsimile transmission with copy by U.S. Mail, if sent via
facsimile plus mail copy (with acknowledgement of complete transmission), to the
parties as follows:
If to the Company, to:
Insurance Management Solutions Group, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇ & Lardner
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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If to Fiserv, Fiserv Solutions or Fiserv Sub, to:
Fiserv, Inc.
Fiserv Solutions, Inc.
Fiserv Merger Sub, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fiserv, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
or such other address or addresses as any party shall have designated by notice
in writing to the other parties.
SECTION 9.04 Entire Agreement. This Agreement, its Exhibits and Schedules
and the Confidentiality Agreement constitute the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral and written, among 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, and no party shall be bound by, or be liable
for, any alleged representation, warranty, promise, inducement or statement of
intention not embodied herein or therein.
SECTION 9.05 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, without regard to
any conflict of law provisions that would defer to the laws of another
jurisdiction. The rights and obligations of the parties hereunder shall be
governed by and determined in accordance with such laws.
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SECTION 9.06 Binding Effect; Benefits. This Agreement shall inure to the
benefit of and be binding upon the parties and their respective successors and
permitted 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 or their respective successors and
permitted assigns, any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
SECTION 9.07 Investigation; Non-Survival of Representations and Warranties.
The respective representations and warranties of Fiserv, Fiserv Solutions and
Fiserv Sub and the Company contained herein or in any certificates or other
documents delivered prior to or at the Closing shall not be deemed waived or
otherwise affected by any investigation made by any party hereto. Each and every
representation and warranty contained herein or in any certificates or other
documents delivered prior to or at the Closing shall be deemed to be conditions
to the Merger in accordance with Article VII hereof and shall not survive the
Merger. This Section 9.07 shall have no effect upon any covenant of the parties
hereto, whether to be performed before or after the Closing.
SECTION 9.08 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. Accordingly, the parties further agree that each party will
be entitled to seek an injunction or restraining order to prevent breaches of
this Agreement and to enforce specifically the terms and provisions hereof in
any court of the United States or any state having jurisdiction, this being in
addition to any other right or remedy to which such party may be entitled under
this Agreement, at law or in equity.
SECTION 9.09 Assignability. Neither this Agreement nor any of the parties'
rights hereunder shall be assignable by any party without the prior written
consent of the other parties.
SECTION 9.10 Prevailing Party. The prevailing party in any suit or action
brought against any other party to enforce the terms of this Agreement or any
rights or obligations hereunder shall be entitled to receive reimbursement of
its reasonable costs, expenses and attorneys' fees and disbursements, including
the costs and expenses of experts, incurred in connection with such suit or
action.
SECTION 9.11 Public Announcements. Fiserv, Fiserv Solutions and Fiserv Sub,
on the one hand, and the Company, on the other hand, 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
others, 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
parties.
SECTION 9.12 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,
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such provision shall be fully severable and this Agreement shall be construed
and enforced as if such illegal, invalid or unenforceable provision has 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.
SECTION 9.13 Interpretation. Unless otherwise qualified, references in this
Agreement to "Article", "article", "Section" or "section" are to provisions of
this Agreement and a reference thereto includes any subparts. The Table of
Contents and the descriptive headings of the articles and sections, or of or in
the Exhibits and Schedules, are inserted for convenience only and are not a part
of this Agreement. As used herein, the singular includes the plural, the plural
includes the singular, and words in one gender include the others. As used
herein, the terms "herein", "hereunder" and "hereof" refer to the whole of this
Agreement, and "include", "including" and similar terms are not words of
limitation.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
FISERV, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President and Chief Executive Officer
FISERV SOLUTIONS, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
FISERV MERGER SUB, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
INSURANCE MANAGEMENT SOLUTIONS GROUP, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman of the Board, President
and Chief Executive Officer
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