AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 17, 1997
REGISTRATION NO. 333-23349
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
AMENDMENT NO. 1 TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
FISERV, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
WISCONSIN 7374 39-1506125
(STATE OR JURISDICTION (PRIMARY STANDARD (I.R.S.
OF INCORPORATION OR INDUSTRIAL EMPLOYERIDENTIFICATION
ORGANIZATION) CLASSIFICATION CODE NUMBER)
NUMBER)
255 FISERV DRIVE
BROOKFIELD, WISCONSIN 53045
(414) 879-5000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
KENNETH R. JENSEN
SENIOR EXECUTIVE VICE PRESIDENT
FISERV, INC.
255 FISERV DRIVE
BROOKFIELD, WISCONSIN 53045
(414) 879-5000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
----------------
COPIES TO:
CHARLES W. SPRAGUE WILLIAM H. RHEINER, ESQUIRE
FISERV, INC. MARTHA J. HAYS, ESQUIRE
255 FISERV DRIVE BALLARD SPAHR ANDREWS & INGERSOLL
BROOKFIELD, WI 53045 1735 MARKET STREET
(414) 879-5000 PHILADELPHIA, PA 19103
(215) 665-8500
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. [_]
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE FEE
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Common Stock, $.01 par value.... 6,530,850 shs. $32.31 $218,783,475 $66,297.96(3)
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(1) Represents an estimate of the number of shares of Fiserv common stock, par
value $.01 per share, to be issued pursuant to the Agreement and Plan of
Merger dated as of March 2, 1997 among BHC Financial, Inc. ("BHC"),
Fiserv, Inc. and Fiserv Delaware Sub, Inc. ("Merger Agreement"), in
exchange for all of the issued and outstanding shares of common stock of
BHC, the actual number of such issued shares to be determined in
accordance with the Conversion Ratio, as defined in the Merger Agreement.
(2) Pursuant to Rule 457(f)(1) and 457(c) promulgated under the Securities Act
of 1933, as amended, and estimated solely for purposes of calculating the
registration fee, the proposed maximum offering price per share is $32.31,
which equals the average of the high and low prices of common stock of BHC
as reported on the NASDAQ National Market on March 12, 1997.
(3) Previously paid.
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FISERV, INC.
CROSS-REFERENCE SHEET PURSUANT TO ITEM 501(B) OF REGULATION S-K
ITEM NUMBER LOCATION IN PROXY STATEMENT/PROSPECTUS
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A. INFORMATION ABOUT THE
TRANSACTION
1. Forepart of Registration
Statement and Outside
Front Cover Page of
Prospectus............... Facing Page; Outside Front Cover Page.
2. Inside Front and Outside
Back Cover Pages of
Prospectus............... Inside Front Cover Page; Incorporation of
Certain Documents by Reference; Available
Information; Table of Contents.
3. Risk Factors, Ratio of
Earnings to Fixed Charges
and Other Information.... Summary; Risk Factors; Fiserv Selected Financial
Data.
4. Terms of the Transaction.. Summary; The Special Meeting; The Merger--
General, Background and Reasons For the Merger,
Recommendation of the Board of Directors of
BHC, Opinion of BHC's Financial Advisor, The
Merger Agreement, Accounting Treatment, Resale
of Fiserv Common Stock by Affiliates, Certain
Regulatory Matters, Rights of Dissenting
Stockholders, Interests of Certain Persons in
the Merger, Rights Plan, Issuance of Additional
Shares; Experts; Appendix A; Appendix B.
5. Pro Forma Financial
Information.............. Unaudited Pro Forma Condensed Consolidated
Financial Information
6. Material Contracts with
Company Being Acquired... Summary; The Merger--Background and Reasons for
the Merger, Recommendation of the Board of
Directors of BHC.
7. Additional Information
Required for Reoffering
by Persons and Parties
Deemed to be
Underwriters............. *
8. Interests of Named Experts
and Counsel.............. Legal Matters; Experts.
9. Disclosure of Commission's
Position on
Indemnification for
Securities Act
Liabilities.............. *
B. INFORMATION ABOUT THE
REGISTRANT
10. Information with Respect to
S-3 Registrants.......... Summary; Available Information; Comparative
Market Prices and Dividends; Incorporation of
Certain Documents by Reference; Business and
Properties of Fiserv; Fiserv Selected Financial
Data; Fiserv Management's Discussion and
Analysis of Financial Condition and Results of
Operations.
11. Incorporation of Certain
Information by
Reference................ Incorporation of Certain Documents by Reference.
12. Information with Respect to
S-2 or S-3 Registrants... *
13. Incorporation of Certain
Information by
Reference................ *
14. Information with Respect to
Registrants Other Than S-
3 or S-2 Registrants..... *
ITEM NUMBER LOCATION IN PROXY STATEMENT/PROSPECTUS
----------- --------------------------------------
C. INFORMATION ABOUT THE
COMPANY BEING ACQUIRED
15. Information with Respect
to S-3 Companies........ *
16. Information with Respect
to S-2 or S-3
Companies............... Summary; Available Information; Comparative
Market Prices and Dividends; Incorporation of
Certain Documents by Reference; BHC Selected
Financial Data; BHC Management's Discussion and
Analysis of Financial Condition and Results of
Operations; Business and Properties of BHC.
17. Information with Respect
to Companies Other Than
S-2 or S-3 Companies.... *
D. VOTING AND MANAGEMENT IN-
FORMATION
18. Information if Proxies,
Consents or
Authorizations are to be
Solicited............... Summary; Incorporation of Certain Documents by
Reference; The Special Meeting; The Merger--The
Merger Agreement, Effective Time and
Consequences of the Merger, Expenses of the
Merger.
19. Information if Proxies,
Consents or
Authorizations are not
to be Solicited, or in
an Exchange Offer....... *
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* Omitted from Prospectus because item is inapplicable or answer is in the
negative.
(ii)
BHC FINANCIAL, INC.
ONE COMMERCE SQUARE
2005 MARKET STREET
PHILADELPHIA, PA 19103-3212
April 18, 1997
TO OUR STOCKHOLDERS:
You are cordially invited to attend the Special Meeting of Stockholders of
BHC Financial, Inc. ("BHC") to be held on May 23, 1997 at 9:30 a.m. local time
at BHC's offices at One Commerce Square, 2005 Market Street, Philadelphia,
Pennsylvania 19103-3212 (the "Special Meeting").
At the Special Meeting, Stockholders will be asked to consider and vote upon
a proposal to adopt an Agreement and Plan of Merger (the "Merger Agreement")
among BHC, Fiserv, Inc. ("Fiserv") and Fiserv Delaware Sub, Inc., a wholly
owned subsidiary of Fiserv. Pursuant to the Merger Agreement, each outstanding
share of BHC Common Stock will be converted into shares of Fiserv Common Stock
and BHC will become a wholly owned subsidiary of Fiserv. Stockholders will
receive cash in lieu of any fractional shares.
Details of the foregoing proposal and the Special Meeting are contained in
the attached Notice of Special Meeting and Proxy Statement/Prospectus. Your
vote on the Merger Agreement is important to BHC, so please read this
information carefully.
THE BOARD OF DIRECTORS OF BHC BELIEVES THAT THE MERGER IS IN THE BEST
INTERESTS OF BHC AND ITS STOCKHOLDERS AND, ACCORDINGLY, HAS UNANIMOUSLY
APPROVED THE MERGER. THE BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE FOR
ADOPTION AND APPROVAL OF THE MERGER AGREEMENT.
All Stockholders are invited to attend the Special Meeting. To assure your
representation at the Special Meeting, please complete, sign, date and return
the accompanying proxy in the enclosed postage prepaid envelope. If you are
able to attend the Special Meeting, you may, if you wish, vote your shares in
person.
Please do not send in your share certificates with your proxy card. After
the effective time of the Merger you will receive a transmittal form and
instructions for the surrender and exchange of your shares.
Sincerely yours,
William T. Spane, Jr.
Chief Executive Officer
BHC FINANCIAL, INC.
ONE COMMERCE SQUARE
2005 MARKET STREET
PHILADELPHIA, PA 19103-3212
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NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD MAY 23, 1997
----------------
To the Stockholders of
BHC Financial, Inc.:
A special meeting of stockholders (the "Special Meeting") of BHC Financial,
Inc., a Delaware corporation ("BHC"), will be held on May 23, 1997, at 9:30
a.m., local time, at One Commerce Square, 2005 Market Street, Philadelphia,
Pennsylvania 19103-3212 for the following purposes:
1. To consider and vote upon a single proposal to adopt and approve an
Agreement and Plan of Merger dated as of March 2, 1997 (the "Merger
Agreement"), among BHC, Fiserv, Inc., a Wisconsin corporation ("Fiserv"),
and Fiserv Delaware Sub, Inc., a Delaware corporation ("Fiserv Sub").
Pursuant to the Merger Agreement, (i) Fiserv Sub will be merged with and
into BHC, with BHC being the surviving corporation and becoming a wholly
owned subsidiary of Fiserv (the "Merger"), and (ii) each share of common
stock, par value $0.001 per share, of BHC ("BHC Common Stock") outstanding
immediately prior to the consummation of the Merger will be converted into
the right to receive such number of shares of common stock, $.01 par value,
of Fiserv ("Fiserv Common Stock") as shall equal the quotient of (x) $33.50
divided by (y) an amount equal to the average closing price of Fiserv
Common Stock as reported on the NASDAQ National Market (as reported in The
Wall Street Journal) for the 20 trading days ending on the second trading
day prior to the effective time of the Merger. A copy of the Merger
Agreement is attached as Appendix A to the accompanying Proxy
Statement/Prospectus.
2. To transact such other business as may properly come before the
Special Meeting or any adjournments or postponements thereof. Holders of
BHC Common Stock are not entitled to dissenters' rights in connection with
the Merger.
The BHC Board of Directors knows of no business that will be presented for
consideration at the Special Meeting, other than the matters described in the
accompanying Proxy Statement/Prospectus.
UNLESS THE PROPOSAL IS APPROVED BY THE REQUISITE VOTE OF BHC STOCKHOLDERS,
THE MERGER WILL NOT BE CONSUMMATED.
Only holders of record of shares of BHC Common Stock at the close of
business on April 15, 1997 are entitled to notice of and to vote at the
Special Meeting and any adjournment or postponement thereof. Holders of BHC
Common Stock are not entitled to dissenters' rights in connection with the
Merger.
The Board of Directors of BHC unanimously recommends a vote FOR the proposal
to approve the Merger Agreement.
To assure that your vote will be counted, please complete, date and sign the
enclosed proxy card and return it promptly in the enclosed prepaid envelope
whether or not you plan to attend the Special Meeting. Your proxy may be
revoked in the manner described in the accompanying Proxy Statement/Prospectus
at any time before it has been voted at the Special Meeting.
By Order of the Board of Directors,
Robert B. Kaplan
Secretary
April 18, 1997
PLEASE EXECUTE AND RETURN THE ENCLOSED PROXY PROMPTLY, WHETHER OR NOT YOU
INTEND TO BE PRESENT AT THE SPECIAL MEETING.
PLEASE DO NOT SEND IN ANY CERTIFICATES FOR YOUR SHARES AT THIS TIME.
BHC FINANCIAL, INC. FISERV, INC.
PROXY STATEMENT PROSPECTUS
COMMON STOCK
---------------
This Proxy Statement/Prospectus is being furnished to the Stockholders of
BHC Financial, Inc., a Delaware corporation ("BHC"), in connection with the
solicitation of proxies from holders of outstanding shares of BHC common
stock, par value $0.001 per share ("BHC Common Stock"), for use at a special
meeting of Stockholders (together with any adjournments or postponements, the
"Special Meeting") of BHC to be held at BHC Financial, Inc., One Commerce
Square, 2005 Market Street, Philadelphia, Pennsylvania 19103-3212 on May 23,
1997, and at any adjournment or postponement thereof. Only holders of record
of shares of BHC Common Stock at the close of business on April 15, 1997 (the
"Record Date") are entitled to notice of and to vote at the Special Meeting.
On the Record Date there were 6,330,850 shares of BHC Common Stock
outstanding. This Proxy Statement/Prospectus, the enclosed Notice of Special
Meeting and accompanying proxy card are first being mailed to BHC Stockholders
on or about April 21, 1997. This proxy solicitation is made by the Board of
Directors of BHC.
At the Special Meeting, the Stockholders of BHC will consider and vote upon
a proposal to approve an Agreement and Plan of Merger dated as of March 2,
1997 (the "Merger Agreement"), among BHC, Fiserv, Inc., a Wisconsin
corporation ("Fiserv"), and Fiserv Delaware Sub, Inc., a Delaware corporation
("Fiserv Sub"), which is wholly owned by Fiserv. Pursuant to the Merger
Agreement, Fiserv Sub will be merged with and into BHC, with BHC being the
surviving corporation (the "Surviving Corporation") and becoming a wholly
owned subsidiary of Fiserv (the "Merger") and each outstanding share of BHC
Common Stock will be converted into the right to receive such number of shares
of Common Stock, $.01 par value, of Fiserv ("Fiserv Common Stock") as shall
equal the "Conversion Ratio," which is the quotient of (x) $33.50 divided by
(y) an amount equal to the average closing price of Fiserv Common Stock as
reported on the NASDAQ National Market (as reported in The Wall Street
Journal) for the 20 trading days ending on the second trading day prior to the
effective time of the Merger. At the effective time of the Merger (the
"Effective Time"), BHC will change its name to "Fiserv Clearing, Inc."
No fractional shares of Fiserv Common Stock will be issued in the Merger. In
lieu of any fractional shares, each holder of BHC Common Stock who would
otherwise be entitled to receive a fractional share of Fiserv Common Stock
pursuant to the Merger will be paid an amount in cash, without interest,
rounded to the nearest cent, determined by multiplying (i) the per share
closing price of Fiserv Common Stock as reported on the NASDAQ National Market
on the date of the Effective Time, by (ii) the fractional interest to which
such holder would otherwise be entitled. Fiserv will make available to the
Exchange Agent (hereinafter defined) the cash necessary for this purpose.
This Proxy Statement/Prospectus also constitutes the Prospectus of Fiserv
with respect to the shares of Fiserv Common Stock to be issued to holders of
BHC Common Stock pursuant to the Merger. Fiserv has filed a Registration
Statement on Form S-4 (together with any amendments thereto, the "Registration
Statement") of which this Proxy Statement/Prospectus forms a part with the
Securities and Exchange Commission (the "Commission") covering the shares of
Fiserv Common Stock to be issued in connection with the Merger.
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY REPRESENTATION
NOT CONTAINED IN THIS PROXY STATEMENT/PROSPECTUS AND IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION SHOULD NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY BHC OR FISERV. THIS PROXY STATEMENT/PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO PURCHASE THE
SECURITIES OFFERED BY THIS PROXY STATEMENT/PROSPECTUS, OR THE SOLICITATION OF
A PROXY BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS
NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER
OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROXY STATEMENT/PROSPECTUS NOR
ANY DISTRIBUTION OF THE SECURITIES OFFERED HEREBY SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF FISERV OR BHC SINCE THE DATE HEREOF OR THAT THE INFORMATION SET
FORTH OR INCORPORATED BY REFERENCE HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT
TO ITS DATE. ALL INFORMATION HEREIN WITH RESPECT TO FISERV AND FISERV SUB HAS
BEEN FURNISHED BY FISERV, AND ALL INFORMATION HEREIN WITH RESPECT TO BHC HAS
BEEN FURNISHED BY BHC.
THE SHARES OF FISERV COMMON STOCK TO BE ISSUED PURSUANT TO THE MERGER
AGREEMENT DESCRIBED IN THIS PROXY STATEMENT/PROSPECTUS HAVE NOT BEEN APPROVED
OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROXY STATEMENT/
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Proxy Statement/Prospectus is April 18, 1997.
AVAILABLE INFORMATION
BHC and Fiserv are subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith file reports, proxy statements and other information with the
Commission. The reports, proxy statements and other information filed by BHC
and Fiserv with the Commission can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates and the Regional
Offices of the Commission: Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661 and 7 World Trade Center, Suite 1300, New York,
New York 10048. Shares of Fiserv Common Stock and BHC Common Stock are traded
on the NASDAQ National Market ("NASDAQ"). Such reports, proxy statements and
other information can also be inspected and copied at the offices of the
NASDAQ National Market, 1735 K Street, N.W., Washington, D.C. 20006. Following
the Merger, BHC will no longer be required to file periodic reports, proxy
statements or other information with the Commission pursuant to the Exchange
Act.
Fiserv has filed with the Commission the Registration Statement under the
Securities Act of 1933, as amended (the "Securities Act"), on Form S-4 with
respect to the Fiserv Common Stock to be issued pursuant to or as contemplated
by the Merger Agreement. This Proxy Statement/Prospectus does not contain all
the information set forth in the Registration Statement and the exhibits
thereto, certain parts of which are omitted in accordance with the rules of
the Commission. Statements made in this Proxy Statement/Prospectus as to the
contents of any contract, agreement or other document referred to are not
necessarily complete; with respect to each such contract, agreement or other
document filed as an exhibit to the Registration Statement, reference is made
to the exhibit for a more complete description of the matter involved, and
each such statement shall be qualified in its entirety by such reference. The
Registration Statement and any amendments thereto, including exhibits filed as
part thereof, are available for inspection and copying at the Commission's
offices as described above. The Commission also maintains a website on the
internet at http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Fiserv (File No. 0-
14948) and BHC (File No. 0-20185) with the Commission pursuant to the Exchange
Act are incorporated by reference in this Proxy Statement/Prospectus:
(1) Fiserv's Annual Report on Form 10-K for the year ended December 31,
1996, filed with the Commission on February 18, 1997.
(2) Fiserv's Current Report on Form 8-K dated March 3, 1997, filed with the
Commission on March 3, 1997.
(3) BHC's Annual Report on Form 10-K for the year ended December 31, 1996,
filed with the Commission on March 14, 1997.
All documents and reports subsequently filed with the Commission by Fiserv
and BHC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this Proxy Statement/Prospectus and prior to the date of the
Special Meeting shall be deemed to be incorporated by reference in this Proxy
Statement/Prospectus and to be a part hereof from the date of filing of such
documents or reports. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Proxy Statement/Prospectus to the extent
that a statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Proxy Statement/Prospectus.
THIS PROXY STATEMENT/PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH
ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. SUCH DOCUMENTS (OTHER THAN
EXHIBITS TO SUCH DOCUMENTS UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED
BY REFERENCE) ARE AVAILABLE TO ANY PERSON, INCLUDING ANY BENEFICIAL OWNER, TO
2
WHOM THIS PROXY STATEMENT/PROSPECTUS IS DELIVERED, ON WRITTEN OR ORAL REQUEST,
WITHOUT CHARGE, IN THE CASE OF DOCUMENTS RELATING TO FISERV, DIRECTED TO
FISERV, INC., 255 FISERV DRIVE, BROOKFIELD, WISCONSIN 53045 (TELEPHONE NUMBER
414-879-5000), ATTENTION: CHARLES W. SPRAGUE, SECRETARY, OR, IN THE CASE OF
DOCUMENTS RELATING TO BHC, DIRECTED TO BHC FINANCIAL, INC., ONE COMMERCE
SQUARE, 2005 MARKET STREET, PHILADELPHIA, PENNSYLVANIA 19103-3212 (TELEPHONE
NUMBER 215-636-3000), ATTENTION: ROBERT B. KAPLAN, SECRETARY. IN ORDER TO
ENSURE TIMELY DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE MADE NO LATER
THAN MAY 16, 1997, THE DATE WHICH IS FIVE BUSINESS DAYS PRIOR TO THE DATE OF
THE SPECIAL MEETING.
PRIVATE SECURITIES LITIGATION REFORM ACT SAFE HARBOR STATEMENT. WHEN USED IN
THIS PROXY STATEMENT/PROSPECTUS, THE WORDS "ESTIMATE," "PROJECT," "INTEND,"
"EXPECT" AND SIMILAR EXPRESSIONS ARE INTENDED TO IDENTIFY FORWARD-LOOKING
STATEMENTS. SUCH STATEMENTS ARE SUBJECT TO RISKS AND UNCERTAINTIES THAT COULD
CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THOSE CONTEMPLATED IN SUCH
FORWARD-LOOKING STATEMENTS. FOR A DISCUSSION OF SUCH RISKS, SEE "RISK
FACTORS," "OPINION OF BHC'S FINANCIAL ADVISOR" AND "BHC MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS."
READERS ARE CAUTIONED NOT TO PLACE UNDUE RELIANCE ON THESE FORWARD-LOOKING
STATEMENTS, WHICH SPEAK ONLY AS OF THE DATE HEREOF. NEITHER FISERV NOR BHC
UNDERTAKES ANY OBLIGATION TO PUBLICLY RELEASE ANY REVISIONS TO THESE FORWARD-
LOOKING STATEMENTS TO REFLECT EVENTS OR CIRCUMSTANCES AFTER THE DATE HEREOF OR
TO REFLECT THE OCCURRENCE OF UNANTICIPATED EVENTS.
3
TABLE OF CONTENTS
AVAILABLE INFORMATION...................................................... 2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............................ 2
SUMMARY.................................................................... 7
General.................................................................. 7
The Parties.............................................................. 7
The Special Meeting...................................................... 8
The Merger............................................................... 8
Comparative Share and Dividend Information and Market Prices............. 12
Certain Significant Considerations....................................... 13
Recent Developments...................................................... 13
Summary Historical And Unaudited Pro Forma Financial Data................ 15
RISK FACTORS............................................................... 18
Average Market Prices Will Differ From Actual Market Price............... 18
Termination Provisions May Have a Deterrent Effect....................... 18
Possible Loss of Business................................................ 18
THE SPECIAL MEETING........................................................ 19
Matters to be Considered at the Special Meeting; Quorum and Vote
Required................................................................ 19
Record Date; Stock Entitled to Vote...................................... 19
Voting and Revocation of Proxies......................................... 19
Solicitation of Proxies.................................................. 20
THE MERGER................................................................. 20
General.................................................................. 20
Background and Reasons for the Merger.................................... 20
Recommendation of the Board of Directors of BHC.......................... 22
Opinion of BHC's Financial Advisor....................................... 23
Management and Operations of BHC Following the Merger.................... 30
The Merger Agreement..................................................... 30
Effective Time and Consequences of the Merger.......................... 30
Merger Consideration................................................... 30
Conversion of BHC Common Stock; Procedures for Exchange of Share
Certificates.......................................................... 30
Representations, Warranties and Covenants.............................. 31
Federal Income Tax Consequences of the Merger.......................... 31
Conversion of Options to Purchase BHC Common Stock; Benefit Plans...... 33
Conditions to the Merger............................................... 33
Amendments and Termination............................................. 33
No Solicitation........................................................ 34
Expenses of the Merger................................................. 34
Accounting Treatment..................................................... 34
Resale of Fiserv Common Stock by Affiliates.............................. 34
Certain Regulatory Matters............................................... 35
Rights of Dissenting Stockholders........................................ 35
Interests of Certain Persons in the Merger............................... 35
Rights Plan.............................................................. 36
Issuance of Additional Shares............................................ 36
COMPARATIVE MARKET PRICES AND DIVIDENDS.................................... 37
FISERV SELECTED FINANCIAL DATA............................................. 38
4
FISERV MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.................................................... 39
Results of Operations................................................... 39
Liquidity and Capital Resources......................................... 40
BUSINESS AND PROPERTIES OF FISERV......................................... 40
Business................................................................ 40
Business Resources...................................................... 41
Business Strategy....................................................... 42
Systems, Services and Products.......................................... 43
Comprehensive Service Dimension......................................... 43
Servicing the Market.................................................... 45
Product Development..................................................... 46
Competition............................................................. 46
Government Regulation................................................... 46
Employees............................................................... 47
Properties.............................................................. 47
BHC SELECTED FINANCIAL DATA............................................... 48
BHC MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.................................................... 49
General................................................................. 49
Important Factors Regarding Forward-Looking Statements.................. 49
Results of Operations................................................... 50
1996 Compared with 1995................................................. 50
1995 Compared with 1994................................................. 52
Liquidity and Capital Resources......................................... 53
Other................................................................... 53
Effects of Inflation.................................................... 53
BUSINESS AND PROPERTIES OF BHC............................................ 53
Nature of BHC's Businesses.............................................. 54
Processing and Support Services......................................... 54
Complementary Products and Services..................................... 56
Retail Brokerage Business............................................... 57
Third Party Marketing Activities........................................ 57
Dependence on Key Clients............................................... 58
Competition and Risk.................................................... 58
Employees............................................................... 58
Properties.............................................................. 58
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL INFORMATION.......... 59
DESCRIPTION OF FISERV COMMON STOCK........................................ 64
COMPARISON OF RIGHTS OF STOCKHOLDERS OF FISERV AND BHC.................... 65
Certain Provisions of Wisconsin and Delaware Law........................ 65
Classified Board of Directors........................................... 65
Number of Directors; Cumulative Voting.................................. 65
Removal of Directors; Filling Vacancies on the Board of Directors....... 65
Limitation on Directors' Liability; Indemnification..................... 66
Meetings of Stockholders................................................ 67
Quorum for Stockholder Meetings......................................... 68
Stockholder Voting Requirements Generally............................... 68
Stockholder Action by Written Consent................................... 68
5
Supermajority Provisions................................................. 68
Stockholder Voting in Certain Significant Transactions; Takeover
Legislation............................................................. 69
Statutory Stockholder Liability.......................................... 70
Derivative Actions....................................................... 70
Dissenters' Rights and Appraisal Rights.................................. 70
Stockholder Inspection of Books and Records.............................. 71
Stockholder Rights Plan.................................................. 71
Loans to Directors....................................................... 72
Amendment or Repeal of the Articles and Bylaws........................... 72
Dividend Declarations.................................................... 73
LEGAL MATTERS.............................................................. 73
EXPERTS.................................................................... 73
STOCKHOLDER PROPOSALS FOR BHC 1997 ANNUAL MEETING.......................... 74
APPENDIX A Agreement and Plan of Merger.................................... A-1
APPENDIX B Opinion of Alex. Brown & Sons Incorporated...................... B-1
6
SUMMARY
The following is a summary of certain information contained elsewhere in this
Proxy Statement/Prospectus. This summary is necessarily incomplete and
selective and is qualified in its entirety by the more detailed information
contained in this Proxy Statement/Prospectus and particularly in the specific
sections of this Proxy Statement/Prospectus referred to below, the Appendices
hereto and the documents incorporated by reference herein.
GENERAL
This Proxy Statement/Prospectus relates to the proposed Merger among BHC,
Fiserv and Fiserv Sub pursuant to the Merger Agreement, a copy of which is
attached hereto as Appendix A. Pursuant to the Merger Agreement, BHC
Stockholders will receive Fiserv Common Stock in exchange for all of their
shares of BHC Common Stock. See "The Merger."
THE PARTIES
Fiserv, Inc. ............. Fiserv, with operations in 75 cities, including 15
cities in Canada, England and Singapore, is a
leading independent provider of financial data
processing systems and related information
management services and products to banks, credit
unions, mortgage banks, savings institutions and
other financial intermediaries. These services and
products are based primarily on proprietary
software developed by Fiserv and maintained on
computers located at data processing centers
throughout the United States. Fiserv is ranked as
the nation's leading data processing provider for
banks and savings institutions in terms of total
clients served and is the nation's second leading
data processing provider for credit unions and
mortgage banks. Fiserv's principal executive
offices are located at 255 Fiserv Drive,
Brookfield, Wisconsin 53045. Its telephone number
is (414) 879-5000. See "Business and Properties of
Fiserv."
BHC Financial, Inc. ...... BHC, through its principal business unit, BHC
Securities, Inc. ("BHC Securities"), is a leading
national third-party provider of integrated
processing and support services to broker-dealers
and financial institutions ("Clients"). During
1996, BHC Securities processed, on behalf of its
Clients, approximately 2.2 million transactions for
over 1.1 million retail brokerage accounts. To
enable its Clients to outsource key securities
processing functions, BHC Securities provides cost
effective integrated trade execution, clearing,
margin lending, customer account processing and
other customized programs, reports and services
("Processing and Support Services"). Through
TradeStar Investments, Inc. ("TradeStar"), a
registered brokerage firm headquartered in Houston,
Texas and a wholly owned subsidiary of BHC, BHC
also offers retail brokerage services at discount
commission rates. TradeStar also markets BHC
Securities' Processing and Support Services
throughout the United States. BHC was incorporated
as a Delaware corporation in 1983 and its principal
executive offices are located at One Commerce
Square, 2005 Market Street, Philadelphia,
Pennsylvania 19103-3212. Its telephone number is
(215) 636-3000.
7
THE SPECIAL MEETING
Date, Time and Place of
Special Meeting.......... May 23, 1997 at 9:30 a.m., local time at BHC's
offices at One Commerce Square, 2005 Market Street,
Philadelphia, Pennsylvania 19103.
Purpose of Special
Meeting.................. To consider and vote upon a proposal to approve the
Merger Agreement, pursuant to which Fiserv Sub, a
wholly owned subsidiary of Fiserv, will merge with
and into BHC, and BHC will be the Surviving
Corporation and will become a wholly owned
subsidiary of Fiserv. See "The Merger."
Record Date............... On April 15, 1997, there were 6,330,850 shares of
BHC Common Stock outstanding with each share of BHC
Common Stock entitled to cast one vote with respect
to the proposal to approve the Merger Agreement.
Quorum; Vote Required..... The presence, in person or by proxy, of the holders
of a majority of the outstanding shares of BHC
Common Stock at the Special Meeting is necessary to
constitute a quorum at the Special Meeting.
Approval of the Merger Agreement requires the
affirmative vote of a majority of the issued and
outstanding shares of BHC Common Stock. See "The
Special Meeting--Matters to be Considered at the
Special Meeting; Quorum and Vote Required."
THE MERGER
Effect of the Merger...... The Merger Agreement (attached as Appendix A to
this Proxy Statement/Prospectus) provides for the
Merger of Fiserv Sub, a wholly owned subsidiary of
Fiserv, with and into BHC. BHC will be the
Surviving Corporation and will become a wholly
owned subsidiary of Fiserv. At the Effective Time,
BHC will change its name to "Fiserv Clearing, Inc."
It is presently contemplated that the Effective
Time of the Merger will be May 30, 1997 or such
other date as the parties may agree. See "The
Merger."
Merger Consideration...... Each outstanding share of BHC Common Stock will be
converted into the right to receive such number of
shares of Fiserv Common Stock as shall equal the
Conversion Ratio, which is defined as the quotient
of (x) $33.50 divided by (y) an amount equal to the
average closing price of Fiserv Common Stock as
reported on NASDAQ (as reported in The Wall Street
Journal) for the 20 trading days ending on the
second trading day prior to the Effective Time (the
"Average Fiserv Stock Price"). Assuming an Average
Fiserv Stock Price of $37.48 (the average closing
price of Fiserv Common Stock as reported on NASDAQ
for the 20 trading days ended April 15, 1997), the
Conversion Ratio would be .8938 and would result in
the present BHC Stockholders owning approximately
11.4% of the outstanding Fiserv Common Stock. See
"The Merger--The Merger Agreement--Merger
Consideration."
8
Fractional Shares......... No fractional shares of Fiserv Common Stock will be
issued in the Merger. In lieu of any fractional
shares, each holder of BHC Common Stock who would
otherwise be entitled to receive a fractional share
of Fiserv Common Stock pursuant to the Merger will
be paid an amount in cash, without interest,
rounded to the nearest cent, determined by
multiplying (i) the per share closing price of
Fiserv Common Stock as reported on NASDAQ on the
date of the Effective Time, by (ii) the fractional
interest to which such holder would otherwise be
entitled. Fiserv will make available to the
Exchange Agent the cash necessary for this purpose.
Recommendation of BHC's
Board of Directors....... The Board of Directors of BHC believes that the
Merger is desirable and in the best interests of
BHC Stockholders and, accordingly, unanimously
recommends that its Stockholders vote in favor of
the approval of the Merger Agreement. The Board of
Directors' recommendation is based upon a number of
factors discussed in this Proxy Statement/
Prospectus. See "The Merger--Background and Reasons
for the Merger" and "The Merger--Recommendation of
the Board of Directors of BHC."
Opinion of BHC's
Financial Advisor........ On March 2, 1997, Alex. Brown & Sons, Incorporated
("Alex. Brown") rendered its opinion to the Board
of Directors of BHC to the effect that, as of such
date, the aggregate consideration to be received by
BHC Stockholders pursuant to the Merger is fair,
from a financial point of view, to such holders.
The full text of the written opinion of Alex.
Brown, confirmed as of the date of this Proxy
Statement/Prospectus, which sets forth the
assumptions made, matters considered and
limitations on the review undertaken, is attached
as Appendix B to this Proxy Statement/Prospectus
and should be read carefully in its entirety. Alex.
Brown's opinion is directed only to the fairness of
the aggregate consideration from a financial point
of view, does not address any other aspect of the
Merger or related transactions and does not
constitute a recommendation to any Stockholder as
to how such Stockholder should vote at the Special
Meeting. See "The Merger--Opinion of BHC's
Financial Advisor" and Appendix B.
Management and Operations
of BHC after the
Merger................... Following the Merger, BHC (which will be renamed
Fiserv Clearing, Inc.) will be the Surviving
Corporation and a wholly owned subsidiary of
Fiserv. George D. Dalton, Chairman of the Board of
Fiserv, will become the sole director of the
Surviving Corporation. Current officers of Fiserv
Sub will become the officers of the Surviving
Corporation. Fiserv intends to operate the
Surviving Corporation as an independent subsidiary
after the Merger and has no present intention to
move or consolidate any of the operations of the
Surviving Corporation or its subsidiaries or to
change the name of any of its subsidiaries. See
"The Merger--Management and Operations of BHC
Following the Merger."
9
Interests of Certain
Persons in the Merger.... In the Merger Agreement, Fiserv has agreed to
assume all outstanding options granted under BHC's
stock option plans and to honor, without
modification, the rights of all present and former
officers, directors and employees under all
individual severance agreements and through
December 31, 1999, to continue or provide
comparable benefits with respect to retirement
benefit agreements between BHC and any such
individuals and the rights of such individuals
under BHC's compensation and benefit plans. See
"The Merger--Interests of Certain Persons in the
Merger" and "The Merger--The Merger Agreement."
Federal Income Tax
Consequences............. The Merger Agreement provides that, for federal
income tax purposes, BHC and Fiserv intend that the
Merger constitute a tax-free "reorganization"
within the meaning of Sections 368(a)(1)(A) and
368(a)(2)(E) of the United States Internal Revenue
Code of 1986, as amended (the "Code"). BHC and
Fiserv intend to treat the Merger as a tax-free
reorganization in their federal income tax returns.
In the event that certain guidelines of the
Internal Revenue Service are not satisfied, it is
possible the Internal Revenue Service could
challenge the tax treatment of the Merger as a tax-
free reorganization. No ruling has been requested
from the Internal Revenue Service.
THE FOREGOING SUMMARY IS NOT INTENDED, AND SHOULD
NOT BE CONSIDERED, AS TAX ADVICE. HOLDERS OF BHC
COMMON STOCK ARE URGED TO CONSULT THEIR OWN TAX
ADVISERS REGARDING THE TAX CONSEQUENCES TO THEM
UNDER APPLICABLE FEDERAL, STATE, LOCAL AND FOREIGN
TAX LAWS. For additional information, see "The
Merger--Federal Income Tax Consequences of the
Merger."
Conditions to the
Merger................... The obligations of Fiserv and BHC to consummate the
Merger are subject to the satisfaction or waiver
(to the extent waivable) of certain conditions set
forth in the Merger Agreement. See "The Merger--The
Merger Agreement."
In the event Fiserv reasonably determines that the
Merger would be accounted for as a pooling of
interests in accordance with generally accepted
accounting principles (the "Pooling Condition"),
then, subject to the other terms and conditions of
the Merger Agreement, the Merger will be
consummated. In the event Fiserv reasonably
determines that the Pooling Condition cannot be
satisfied, then, subject to the other terms and
conditions of the Merger Agreement, the Merger will
be consummated, provided that the Merger
consideration will be adjusted by modifying the
definition of Conversion Ratio such that $33.50 is
replaced with $31.50. Fiserv's management currently
believes that, subject to BHC's sale of shares in
the BHC Stock Offering (hereinafter defined), the
Pooling Condition will be satisfied. See "The
Merger--Conditions to the Merger" and "The Merger--
Issuance of Additional Shares."
10
Termination of Merger
Agreement................ The Merger Agreement may be terminated by (i)
mutual consent of BHC and Fiserv Sub, (ii) either
party if the Merger has not been consummated on or
before six months after the scheduled Closing Date
and (iii) in certain other situations. See "The
Merger--Termination."
No Solicitation........... BHC has agreed that it will not solicit, directly
or indirectly, any proposal or offer to acquire all
or any significant part of its business and
properties or its capital stock, whether by merger,
purchase of assets, tender offer or otherwise (a
"BHC Acquisition Proposal").
In the event that BHC terminates the Merger
Agreement because it has received a BHC Acquisition
Proposal which the Board of Directors of BHC
determines in good faith that it would be a breach
of its fiduciary duties if it did not accept, and
within six months of termination it has entered
into an agreement or publicly announced its
intention to enter into an agreement regarding a
BHC Acquisition Proposal, BHC will pay Fiserv a
termination fee of $2,000,000. See "The Merger--The
Merger Agreement--No Solicitation."
Accounting Treatment...... It is anticipated that the Merger will be accounted
for as a pooling of interests under Accounting
Principles Board Opinion No. 16. Because of recent
purchases by BHC of BHC Common Stock, BHC may be
required, among other things, to sell approximately
200,000 shares of BHC Common Stock (either as a
result of the exercise of outstanding stock options
or through an offering to unrelated parties) prior
to the Effective Time in order for the Merger to be
accounted for as a pooling of interests. As part of
the Merger Agreement, BHC has agreed to sell such
shares prior to the consummation of the Merger (the
"BHC Stock Offering"), if necessary to receive such
accounting treatment. See "The Merger--Accounting
Treatment" and "The Merger--Issuance of Additional
Shares."
Exchange of BHC Stock
Certificates............. Promptly after the Effective Time, Firstar Trust
Company, Milwaukee, as exchange agent (the
"Exchange Agent"), will mail to each holder of
shares of BHC Common Stock a letter of transmittal
and instructions for exchanging such holder's
certificates to certificates representing the
shares of Fiserv Common Stock to which such holders
are entitled. BHC Stockholders should not send
their certificates until they receive such
instructions. See "The Merger--The Merger
Agreement--Conversion of BHC Common Stock;
Procedures for Exchange of Share Certificates."
Effect of the Merger on
Rights of Stockholders... Fiserv is a Wisconsin corporation; BHC is a
Delaware corporation. For a comparison of Wisconsin
and Delaware laws and of the charter and bylaw
provisions of Fiserv and BHC governing the rights
of Fiserv Stockholders and BHC Stockholders,
respectively, see "Comparison of Rights of
Stockholders of Fiserv and BHC."
11
Dissenters' Rights........ So long as BHC Common Stock is quoted on NASDAQ on
the Record Date of the Special Meeting, and Fiserv
Common Stock is quoted on NASDAQ at the Effective
Time, holders of BHC Common Stock shall have no
appraisal or dissenters' rights in connection with
the Merger. See "The Merger--Rights of Dissenting
Stockholders" and "Comparison of Rights of
Stockholders of Fiserv and BHC--Dissenters' Rights
and Appraisal Rights."
Certain Regulatory
Matters.................. Consummation of the Merger is subject to certain
regulatory approvals. Fiserv and BHC believe that
the Merger can be effected in compliance with all
federal and state regulations. See "The Merger--
Certain Regulatory Matters."
Resale Restrictions....... All shares of Fiserv Common Stock received by BHC
Stockholders will be freely tradeable, except
shares of Fiserv Common Stock received by persons
who are deemed to be "affiliates" (as such term is
defined in the Securities Act) of BHC or Fiserv at
the time of the Special Meeting may be resold by
them only in certain permitted circumstances under
the Securities Act, other applicable securities
laws and rules related to pooling of interests
accounting treatment. See "The Merger--Resale of
Fiserv Common Stock by Affiliates."
COMPARATIVE SHARE AND DIVIDEND INFORMATION AND MARKET PRICES
Fiserv Common Stock
Outstanding.............. 45,451,273 shares as of April 15, 1997.
Fiserv Dividends.......... No dividends on the Fiserv Common Stock have been
paid. See "Comparative Market Prices and
Dividends."
BHC Common Stock
Outstanding..............
6,330,850 shares as of April 15, 1997.
BHC Dividends............. For each of the years ended December 31, 1995 and
December 31, 1996, BHC paid quarterly cash
dividends in the amount of $.03 per share,
resulting in aggregate annual dividends in the
amount of $.12 per share. See "Comparative Market
Prices and Dividends."
12
Market Price Data......... The Fiserv Common Stock (NASDAQ Symbol: FISV) is
traded on NASDAQ. The BHC Common Stock (NASDAQ
Symbol: BHCF) is also traded on NASDAQ. The
following table sets forth for the calendar periods
indicated, the closing price per share of Fiserv
Common Stock and BHC Common Stock as reported by
NASDAQ.
FISERV BHC
COMMON STOCK COMMON STOCK
------------------ ----------------
HIGH LOW HIGH LOW
------ ------ ------ ------
1995:
First Quarter.................... $ 27 3/4 $ 21 $ 14 1/4 $ 9 1/16
Second Quarter................... 28 3/8 25 3/4 16 3/8 14 1/8
Third Quarter.................... 31 25 1/2 20 1/8 15 1/2
Fourth Quarter................... 30 1/8 25 1/2 19 1/2 16 1/4
1996:
First Quarter.................... $ 32 $ 25 3/8 $ 18 5/8 $ 12 7/8
Second Quarter................... 33 3/8 28 1/16 14 3/4 12 1/2
Third Quarter.................... 38 11/16 28 5/8 15 1/8 13
Fourth Quarter................... 39 5/8 34 16 3/4 13
1997:
First Quarter.................... $ 39 32 3/4 32 5/8 15 1/4
Second Quarter (through April 15,
1997)........................... 38 3/8 36 3/4 32 7/8 32 1/8
On February 28, 1997, the last full trading day prior to the joint public
announcement that BHC and Fiserv had executed the Merger Agreement, the closing
prices per share of Fiserv Common Stock and BHC Common Stock as reported by
NASDAQ were $32.75 and $20.00, respectively.
On April 15, 1997, the closing prices per share of Fiserv Common Stock and
BHC Common Stock as reported by NASDAQ were $38.375 and $32.50, respectively.
See "Comparative Market Prices and Dividends." Stockholders of BHC are urged to
obtain current market quotations for shares of Fiserv Common Stock and BHC
Common Stock.
CERTAIN SIGNIFICANT CONSIDERATIONS
In considering whether to approve the Merger Agreement, BHC Stockholders
should consider the following: (i) the Conversion Ratio will be determined
based upon the Average Fiserv Stock Price; and (ii) the price of Fiserv Common
Stock at the Effective Time can be expected to vary from the Average Fiserv
Stock Price as well as from the prices as of the date of this Proxy
Statement/Prospectus and the date on which BHC Stockholders vote on the Merger
Agreement due to changes in the business, operations or prospects of Fiserv,
market assessments on the likelihood that the Merger will be consummated and
the time thereof, general market and economic conditions, and other factors.
See "Summary--The Merger," "Comparative Market Prices and Dividends" and "Risk
Factors."
RECENT DEVELOPMENTS
FISERV
On March 19, 1997, Fiserv filed a registration statement with the Commission
with respect to 601,951 shares of Fiserv Common Stock, to be sold by existing
stockholders of Fiserv. The distribution of those shares by the selling
stockholders may be effected from time to time in one or more transactions
(which may involve block transactions) in the over-the-counter market, on
NASDAQ (or any exchange on which the Fiserv Common Stock may then be listed),
in negotiated transactions or otherwise. Sales will be effected at such prices
and for such consideration as may be obtainable from time to time.
13
On April 1, 1997, Fiserv announced its acquisition of AdminaStar
Communications, Inc. ("AdminaStar"), a subsidiary of Anthem, Inc. Formed in
1992 to serve the print-on-demand, laser printing and mail fulfillment business
of a wide range of clients, AdminaStar has grown to become a leading commercial
provider of laser printing and mailing services. With operations in
Indianapolis and Dallas, AdminaStar employs over 250 people in laser printing,
print-on-demand, statement and document preparation, mailing and related data
processing services.
BHC
On April 16, 1997, BHC reported its results for the first quarter ended March
28, 1997. Net income for the first quarter of 1997 totaled $4,515,000 on net
revenues of $21,869,000 compared to $4,972,000 in net income on net revenues of
$20,349,000 for the first quarter of 1996. Net income per common share for the
first quarter of 1997 was $.68 compared to $.70 in the same period in 1996, a
3% decrease. The first quarter of 1997 had three fewer trading and interest
days and includes expenses related to the Merger.
Net revenues increased 7%, or $1,500,000, in the first quarter of 1997 over
the same period in 1996, largely as a result of increases in transaction volume
and net interest income. Net interest income totaled $4,300,000 for the first
quarter of 1997, compared to $3,900,000 for the first quarter of 1996, a 10%
increase.
Expenses for the first quarter of 1997, excluding interest and Merger
expenses, increased $1,500,000, or 13% over the first quarter of 1996. This
increase in expenses is attributable to an increase in variable expenses
required to handle the increased volume, various system related enhancements
and expenses related to introduction of BHC's client server order entry
software. Merger-related expenses amounted to $643,000.
There were 6,664,000 fully diluted shares outstanding as of the end of the
first quarter of 1997, as compared to 7,104,000 such shares outstanding as of
the end of the first quarter of 1996.
14
SUMMARY HISTORICAL AND UNAUDITED PRO FORMA FINANCIAL DATA
The following tables present summary historical information for Fiserv and
BHC and unaudited summary pro forma combined financial information which have
been derived from the historical consolidated financial statements of Fiserv
and BHC incorporated by reference herein. The unaudited pro forma combined
financial data gives effect to the Merger by combining the financial statement
data of Fiserv and BHC at December 31, 1996 and December 31, 1995 and for each
year in the three year period ended December 31, 1996 on a pooling of interests
basis of accounting. The pro forma combined financial data is not necessarily
indicative of actual or future operating results or financial position that
would have occurred or will occur upon consummation of the Merger. The
unaudited pro forma combined financial information has been prepared on the
assumption that 6,566,000 shares of Fiserv Common Stock will be issued in the
Merger for all shares and common equivalent shares of BHC Common Stock
outstanding as of the effective time. The pro forma summary consolidated
balance sheet data and the pro forma summary consolidated statements of income
data have been prepared by Fiserv management based upon the audited financial
statements of Fiserv and BHC for the periods indicated.
The summary financial data presented below should be read in conjunction with
such financial statements and the notes thereto. The historical financial data
at and for each year in the five-year period ended December 31, 1996, with
respect to Fiserv and BHC, have been extracted from audited financial
statements filed with the Commission. See "Incorporation of Documents by
Reference" and "Pro Forma Combined Financial Information."
FISERV SUMMARY HISTORICAL CONSOLIDATED FINANCIAL DATA
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
YEAR ENDED DECEMBER 31,
-------------------------------------------------------
1992 1993 1994 1995(1) 1996
---------- ---------- ---------- ---------- ----------
INCOME STATEMENT DATA:
Revenues.............. $ 341,448 $ 467,863 $ 579,839 $ 703,380 $ 798,268
Income (loss) before
taxes................ 39,291 53,177 67,345 (98,531) 104,549
Net income (loss)..... 24,366 32,713 40,407 (59,863) 61,684
Net income (loss) per
common and common
equivalent share..... $ 0.69 $ 0.83 $ 0.99 $ (1.36) $ 1.34
Shares used in
computing net income
per share............ 35,379 39,455 40,735 44,008 46,198
YEAR ENDED DECEMBER 31,
-------------------------------------------------------
1992 1993 1994 1995 1996
---------- ---------- ---------- ---------- ----------
BALANCE SHEET DATA:
Total assets.......... $1,097,339 $1,395,403 $1,661,345 $1,885,299 $1,908,519
Long-term debt and
other long-term
obligations.......... 59,472 122,417 150,016 383,416 272,864
Stockholders' equity.. 195,630 312,873 358,722 434,262 507,270
Book value per common
share................ $ 5.62 $ 7.89 $ 8.96 $ 9.67 $ 11.19
- --------
(1) 1995 includes certain charges related to the acquisition of Information
Technology, Inc. ("ITI"). The charges are a pre-tax special, one-time, non-
cash charge of $173 million to expense the purchased ITI Premier II
research and development and a pre-tax charge of $9.9 million for the
accelerated amortization of the completed ITI Premier I software. The
combined after tax charge was $109.6 million ($2.49 per share). Net income
and net income per share before such charges were $49.8 million and $1.13,
respectively.
15
BHC SUMMARY HISTORICAL CONSOLIDATED FINANCIAL DATA
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
YEAR ENDED DECEMBER 31,
-----------------------------------------------
1992 1993 1994 1995 1996
-------- -------- -------- -------- --------
INCOME STATEMENT DATA:
Revenues..................... $ 51,031 $ 60,428 $ 67,376 $ 81,354 $ 97,817
Income before taxes.......... 13,306 17,655 16,753 22,385 29,913
Net income................... 8,628 11,012 10,624 13,937 18,024
Earnings per share:
Primary...................... $ 2.29 $ 1.84 $ 1.40 $ 1.94 $ 2.69
Fully Diluted................ $ 1.63 $ 1.60 $ 1.40 $ 1.94 $ 2.69
Weighted Average Shares
outstanding:
Primary...................... 3,778 5,978 7,581 7,193 6,688
Fully diluted................ 5,563 7,046 7,581 7,193 6,688
Cash dividends declared per
common share................ -- $ 0.04 $ 0.08 $ 0.12 $ 0.12
YEAR ENDED DECEMBER 31,
-----------------------------------------------
1992 1993 1994 1995 1996
-------- -------- -------- -------- --------
BALANCE SHEET DATA:
Total Assets................. $393,572 $490,194 $551,921 $634,002 $785,299
Long-term debt and other
long-term obligations....... 19,211 2,207 583 -- --
Stockholders' equity......... 26,639 68,525 75,101 85,308 93,467
Book value per common share.. $ 6.62(1) $ 9.04 $ 10.43 $ 12.19 $ 14.76
- --------
(1) Assumes conversion of the then outstanding 8% convertible debentures due
February 27, 1997 into common stock at December 31, 1992.
16
FISERV AND BHC SUMMARY PRO FORMA COMBINED FINANCIAL DATA
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
YEAR ENDED DECEMBER 31,
-------------------------------
1994 1995 1996
-------- -------- --------
INCOME STATEMENT DATA:
Revenues.............................. $635,297 $769,104 $879,449
Income (loss) before taxes............ 84,098 (76,146)(1) 134,462
Net income (loss)..................... 51,031 (45,926)(1) 79,708
Net income (loss) per common and
common equivalent shares............. $ 1.08 $ (.91)(1) $ 1.51
Shares used in computing net income
per share(3)......................... 47,301 50,574 52,764
DECEMBER 31,
---------------------
1995(2)(3) 1996(2)(3)
---------- ----------
BALANCE SHEET DATA:
Total Assets........................................... $2,523,151 $2,697,668
Long-term debt and other long-term obligations......... 383,416 272,864
Stockholders' equity................................... 523,420 604,587
Book Value per common share............................ $ 10.09 $ 11.70
- --------
(1) 1995 includes charges related to the acquisition of Information Technology,
Inc. ("ITI") which are a pre-tax special, one-time, non-cash charge of $173
million to expense the purchase ITI Premier II research and development and
a pre-tax charge of $9.9 million" for the accelerated amortization of the
completed ITI Premier I Software. The combined after-tax charge was $109.6
million. Pro forma combined Fiserv and BHC net income and earnings per
share before such charges would have been $63.8 million and $1.26,
respectively.
(2) Reflects proceeds from issuance of shares of BHC Common Stock prior to
closing of the Merger, retirement of remaining BHC treasury shares and
anticipated Merger-related expenses.
(3) Assumes issue of additional shares of Fiserv Common Stock related to the
Merger.
17
RISK FACTORS
AVERAGE MARKET PRICES WILL DIFFER FROM ACTUAL MARKET PRICE
In considering whether to approve the Merger Agreement, BHC Stockholders
should consider the following: (i) the Conversion Ratio will be determined
based upon the Average Fiserv Stock Price; and (ii) the price of Fiserv Common
Stock at the Effective Time can be expected to vary from the Average Fiserv
Stock Price as well as from the prices as of the date of this Proxy
Statement/Prospectus and the date on which BHC Stockholders vote on the Merger
Agreement due to changes in the business, operations or prospects of Fiserv,
market assessments on the likelihood that the Merger will be consummated and
the time thereof, general market and economic conditions, and other factors.
See "Summary--The Merger" and "Comparative Market Prices and Dividends."
TERMINATION PROVISIONS MAY HAVE A DETERRENT EFFECT
BHC has agreed that it will not, directly or indirectly, solicit any BHC
Acquisition Proposal. In the event (i) BHC terminates the Merger Agreement
because another person has made a BHC Acquisition Proposal that the BHC Board
of Directors determines in good faith that the failure to accept such BHC
Acquisition Proposal could reasonably be deemed to cause the members of the
Board of Directors to breach their fiduciary duties under applicable law, and
(ii) within six months of such termination, BHC shall have entered into, or
shall have publicly announced its intention to enter into, an agreement or
agreement in principle with respect to any BHC Acquisition Proposal, then BHC
shall pay Fiserv a termination fee of $2,000,000. These provisions in the
Merger Agreement may have the effect of discouraging an attempt by a third
party to engage in certain acquisition transactions with BHC. See "The
Merger--The Merger Agreement--No Solicitation."
POSSIBLE LOSS OF BUSINESS
Despite the effort of both Fiserv and BHC, current clients of BHC may not
continue with Fiserv subsequent to the Merger. The loss of a material number
of clients could adversely affect the combined operations of Fiserv and BHC.
18
THE SPECIAL MEETING
This Proxy Statement/Prospectus is being furnished to Stockholders of BHC in
connection with the solicitation of proxies by the Board of Directors of BHC
from holders of BHC Common Stock for use at the Special Meeting. This Proxy
Statement/Prospectus, Notice of Special Meeting and proxy card are first being
mailed to Stockholders of BHC on or about April 21, 1997.
MATTERS TO BE CONSIDERED AT THE SPECIAL MEETING; QUORUM AND VOTE REQUIRED
At the Special Meeting, the Stockholders of BHC will be asked to consider
and vote upon a proposal to approve the Merger Agreement, pursuant to which
Fiserv Sub will be merged with and into BHC, BHC will be the Surviving
Corporation and will become a wholly owned subsidiary of Fiserv, and BHC
Stockholders will receive shares of Fiserv Common Stock in exchange for shares
of BHC Common Stock they own. See "The Merger."
The presence, in person or by proxy, of the holders of a majority of the
outstanding shares of BHC Common Stock at the Special Meeting is necessary to
constitute a quorum at the Special Meeting. Abstentions and broker non-votes
will be included in determining the presence of a quorum, but will not count
as votes cast. The affirmative vote of a majority of the outstanding shares of
BHC Common Stock, either in person or by proxy, is required for approval of
the Merger Agreement. For purposes of the vote, the effect of any abstention
or broker non-votes will be tantamount to a vote against the Merger Agreement.
If a quorum is not obtained, or if fewer shares of BHC Common Stock are
voted in favor of the Merger Agreement than the number required for approval,
it is expected that the Special Meeting will be postponed or adjourned for the
purpose of allowing additional time for obtaining additional proxies or votes.
Proxies voting in favor of the Merger Agreement will be voted in favor of
adjournment. Proxies voting against the Merger Agreement or abstaining will be
voted against or will abstain from voting on adjournment, respectively. At any
subsequent reconvening of the Special Meeting, all proxies will be voted in
the same manner as such proxies would have been voted at the original
convening of the Special Meeting (except for any proxies which have
theretofore effectively been withdrawn or revoked).
In the event the Merger is not approved and adopted by the Stockholders of
BHC, the Merger Agreement may be terminated in accordance with its terms. See
"The Merger--The Merger Agreement--Amendments and Termination."
RECORD DATE; STOCK ENTITLED TO VOTE
Each share of BHC Common Stock outstanding on the Record Date is entitled to
be voted at the Special Meeting. Holders of record of BHC Common Stock at the
close of business on April 15, 1997, the Record Date, are entitled to one vote
per share. There were 6,330,850 shares of BHC Common Stock issued and
outstanding on the Record Date.
VOTING AND REVOCATION OF PROXIES
Proxies in the accompanying form, properly executed, duly returned to BHC
and not revoked will be voted in the manner specified thereon. If no
specification is made in a proxy returned for the Special Meeting, such proxy
will be voted FOR the adoption and approval of the Merger Agreement. A
Stockholder who gives a proxy may revoke it at any time before it is voted by
filing with the Secretary of BHC a written instrument stating that the proxy
is revoked or by submitting a duly executed proxy bearing a later date. Any
Stockholder who attends the Special Meeting and desires to vote in person may
revoke the proxy and vote at the Special Meeting. Presence at the Special
Meeting does not of itself revoke a proxy.
Management of BHC is not aware of any matters to be presented at the Special
Meeting other than the approval of the Merger Agreement. If any other matters
are properly presented at the Special Meeting, the
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persons named in the accompanying proxy card will have discretionary authority
to vote thereon according to their best judgment.
SOLICITATION OF PROXIES
Solicitation of proxies for use at the Special Meeting may be made in person
or by mail, telephone, telecopy or telegram. BHC will bear the cost of the
solicitation of proxies from its Stockholders. In addition to solicitation by
mail, the directors, officers and employees of BHC may solicit proxies from
Stockholders of BHC by telephone or telegram or in person. Such directors,
officers and employees will not be compensated for such solicitation. BHC has
requested that banking institutions, brokerage firms, custodians, trustees,
nominees and fiduciaries forward solicitation materials to the beneficial
owners of BHC Common Stock held of record by such entities, and BHC will, upon
the request of such record holders, reimburse reasonable forwarding expenses.
BHC STOCKHOLDERS SHOULD NOT SEND STOCK CERTIFICATES WITH THEIR PROXY CARDS.
THE MERGER
GENERAL
The Merger Agreement (attached as Appendix A to this Proxy
Statement/Prospectus) provides for the Merger of Fiserv Sub, Fiserv's wholly
owned subsidiary, with and into BHC. BHC will be the Surviving Corporation and
will carry on the business of BHC as a wholly owned subsidiary of Fiserv. At
the Effective Time, BHC will change its name to Fiserv Clearing, Inc. Each
outstanding share of BHC Common Stock will be converted into Fiserv Common
Stock at the Conversion Ratio, which, assuming an Average Fiserv Stock Price
of Fiserv Common Stock of $37.48 (the average closing price of Fiserv Common
Stock, as reported on NASDAQ for the 20 trading days ended April 15, 1997),
will result in the present BHC Stockholders owning approximately 11.4% of the
outstanding Fiserv Common Stock. It is presently contemplated that the
Effective Time of the Merger will be May 30, 1997 or such other date as the
parties may agree.
BACKGROUND AND REASONS FOR THE MERGER
In September 1996, representatives of Private Capital Management, Inc., a
registered investment advisor and, with affiliates, the owner of approximately
19% of BHC's outstanding common stock ("PCM"), met with representatives of BHC
to discuss cooperative efforts to enhance shareholder value, including, among
other possibilities, stock repurchases, special dividends or a merger or sale
transaction. On October 15, 1996, representatives of PCM made a presentation
to the Board of Directors at which they offered to structure a merger
transaction pursuant to which all outstanding shares of BHC would be acquired
for cash. This offer was set forth in a letter to the Board of Directors,
which was filed as part of an amended Schedule 13D filing by PCM on October
16, 1996. Their letter suggested that they would be willing to offer a
"significant premium over the closing price on September 30, 1996" (the
closing price on such date was $13.00 per share).
At approximately the same time, representatives of Fiserv made a
presentation to the Board of Directors, indicating an interest in exploring a
transaction with BHC. One other entity also indicated an interest and made a
presentation to the Board of Directors.
At Board of Directors meetings of BHC held on October 15 and 16, 1996, at
which these presentations were made, the Board of Directors discussed
alternatives. Among other things, the Board of Directors noted the recent
notification by two significant clients of their intention to internalize
their processing, the effects of consolidation in the banking industry on its
business and prospects, the effect of the internalization by some institutions
of their securities clearing functions, the historical dependency of BHC in
expanding BHC's business with existing Clients and the relatively recent
emphasis by BHC in expanding its non-bank related Client base. The Board of
Directors also noted that an acquisition of BHC by a third party could enhance
future growth and
20
profitability and could also increase shareholder value. The Board of
Directors determined that it was in BHC's best interest to consider both
remaining independent and pursuing other strategic alternatives to enhance
shareholder value.
A Special Committee of the Board of Directors (the "Special Committee") was
established consisting of Messrs. Arnold, Bell, Bunn and Denton, outside
directors, and empowered to consider and recommend to the Board of Directors
whether BHC should remain independent or whether it should explore other
strategic alternatives. The Special Committee retained Delaware counsel to
represent the outside directors in connection with their consideration of the
foregoing matters. The Special Committee was empowered to retain independent
investment advisors to assist it in fulfilling its duties.
At the same meeting, the Board of Directors considered the advisability of
adopting a stockholders rights plan, and counsel to BHC was authorized to
prepare the necessary documentation for a plan to be considered at a
subsequent meeting.
A meeting of the Special Committee was held on November 4, 1996. Mr. Bell,
the Chairman of the Special Committee, reported that he and Mr. Spane had
interviewed candidates to act as financial advisors to BHC. Alex. Brown was
retained as financial advisor to BHC to assist it in evaluating its strategic
alternatives. Pursuant to an engagement letter, Alex. Brown agreed to analyze
various strategic and financial alternatives available to BHC to maximize
shareholder value. It was to assist and advise in connection with possible
negotiations only if requested in writing by BHC to do so.
The Special Committee also considered the advisability of adopting a
stockholders rights plan. After presentations on such plan by Delaware counsel
to the outside directors, by counsel to BHC and by Alex. Brown, the Special
Committee resolved to recommend the adoption of a plan to the Board of
Directors.
Alex. Brown presented its financial analysis of BHC and various strategic
and financial alternatives available to it to the Special Committee at the
November 4 meeting. Certain members of the Special Committee felt the
presentation failed to take into account factors they believed would have a
material impact on the value of BHC and on the alternatives available to it.
Alex. Brown was asked to consider those issues and report further at the
November 12, 1996 Board of Directors meeting.
At the November 12, 1996 meeting of the Board of Directors, the Special
Committee reported on its meeting of November 4, 1996. It reported its
recommendation to adopt a stockholder rights plan to protect stockholder
value. After presentations by Alex. Brown and legal advisors, the plan was
adopted.
Representatives of Alex. Brown presented their analysis of BHC and the
alternatives available to it for maximizing stockholder value to the full
Board of Directors. After discussion, the Board of Directors agreed that BHC
should examine possible transactions for maximizing stockholder value. Alex.
Brown was requested in writing to assist BHC in negotiations leading to a
possible transaction. The Board of Directors instructed Alex. Brown to conduct
a parallel analysis considering a merger, a sale of BHC or an acquisition by
BHC of other businesses.
Management and Alex. Brown identified six companies that were likely to be
interested in and able to consummate a financially attractive strategic
combination with BHC (including PCM and Fiserv). The Board of Directors
directed Alex. Brown to contact such companies. Following subsequent
discussions with the Chairman of the Special Committee and with management,
Alex. Brown contacted eight companies.
At a meeting of the Special Committee on December 6, 1996, Mr. Bell reported
that seven of the eight companies contacted had an interest in exploring a
transaction with BHC and that the procedures for discussions with such
companies were developed. As a condition to the receipt of information, each
company would be required to enter into a Confidentiality Agreement with BHC.
21
A meeting of the Special Committee was held on December 23, 1996. The
purpose of the meeting was to discuss responses received by Alex. Brown to its
request for indications of interest in exploring a transaction with BHC. Of
the seven organizations contacted who had expressed interest, six of the seven
indicated continued interest in exploring a transaction, including PCM and
Fiserv. The interested companies were given an opportunity to perform further
due diligence, to review and comment on a form of merger agreement and to meet
with senior management.
During January and February, 1997, Alex. Brown and management worked with
the interested companies to assist them in understanding BHC's business and
prospects. Levels of interest were proposed and explored. At a meeting of the
Special Committee on February 24, 1997, the status of the indications of
interest received was discussed.
At a meeting on February 26, 1997, the Special Committee discussed the
indications of interest by the interested companies and the possibility of
seeking improved offers from interested companies. The Special Committee
discussed with Alex. Brown strategic issues and heard Alex. Brown's views on
the offers. The meeting of the Special Committee was adjourned and a meeting
of the full Board of Directors convened. Alex. Brown analyzed the offers
received from the interested companies, including Fiserv. The meeting of the
Board of Directors adjourned and the meeting of the Special Committee was
reconvened. At the reconvened meeting, structural and strategic issues were
discussed. After discussion the Special Committee recommended to the Board of
Directors that Alex. Brown and BHC's counsel try to finalize an agreement with
Fiserv on substantially the terms of the proposal from Fiserv which had been
discussed at the meeting, with particular focus on optimizing the transaction
for stockholders as to price and as to accounting and tax treatment. The
meeting of the Special Committee adjourned and the Board of Directors meeting
was reconvened, at which the Board of Directors endorsed the recommendation of
the Special Committee.
At a special meeting of the Board of Directors on March 2, 1997, the Board
of Directors, with its legal and financial advisors, reviewed, among other
things, the history of the transaction and a negotiated draft Merger Agreement
and heard presentations from its legal and financial advisors. Following its
deliberations, the Board of Directors approved an amendment to the stockholder
rights plan exempting the transactions contemplated by the Merger Agreement
from the plan and approved, to the extent required by Section 203 of the
Delaware General Corporation Law (the "DGCL"), Fiserv's becoming an interested
stockholder by virtue of its execution and delivery of the Merger Agreement.
RECOMMENDATION OF THE BOARD OF DIRECTORS OF BHC
At the meeting of the Board of Directors on March 2, 1997, the Special
Committee, in a separate vote, determined that the Merger was fair to and in
the best interests of BHC and its Stockholders and recommended it to the Board
of Directors. The Board of Directors, in turn, determined that the Merger was
fair to and in the best interests of BHC and its Stockholders and unanimously
approved the Merger Agreement. THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS
THAT BHC'S STOCKHOLDERS VOTE FOR APPROVAL AND ADOPTION OF THE MERGER
AGREEMENT.
The determination of the Board of Directors to approve the Merger Agreement
was based upon consideration of a number of factors. The following list
includes all material factors considered by the Board of Directors in its
evaluation of the Merger and the Merger Agreement:
1. The Board of Directors' familiarity with, among other things, the
business, operations, financial condition, competitive position and
prospects of BHC, the nature of the financial industry in which BHC
participates, and current industry, economic and market conditions;
2. The fact that Alex. Brown, on behalf of BHC, had solicited interest in
a possible acquisition of BHC from third parties and that BHC had not
received offers or indications of interest from other parties at prices in
excess of the consideration to be received in the Merger;
22
3. The conclusion of the Board of Directors that a transaction with
Fiserv could achieve synergistic benefits;
4. The Board of Directors' review of presentations by, and discussion of
the terms and conditions of the Merger Agreement with, management of BHC,
its legal advisors and representatives of Alex. Brown;
5. The expected accounting treatment of the transaction as a pooling of
interests and the terms of the Merger Agreement in the event the accounting
treatment is not as expected;
6. The expected tax treatment of the Merger;
7. The strategic and financial alternatives available to BHC, including
remaining an independent company;
8. The Board of Directors' receipt of the opinion of Alex. Brown that, as
of March 2, 1997, the consideration to be received by the holders of Common
Stock pursuant to the Merger Agreement was fair to such holders from a
financial point of view;
9. The recognition by the Board of Directors that the Merger would
deprive the holders of BHC Common Stock of the opportunity to continue
their equity interests in BHC as an independent entity. However, the Merger
would permit the holders of BHC Common Stock to continue to hold equity
interests in Fiserv, a much larger, more liquid company operating in a
broader sector of the financial services industry, and to participate in
the future growth of Fiserv; the Board of Directors also determined that
the Merger is consistent with enhancing stockholder value;
10. The Board of Directors' review of the historical market prices of
shares of BHC Common Stock and Fiserv Common Stock, the historical market
prices of shares of BHC Common Stock compared to the consideration to be
received pursuant to the Merger and the future rates of growth and price
earnings ratios which would be necessary for the market price of BHC Common
Stock to equal or exceed the market value of the consideration to be
received in the Merger;
11. Certain publicly available information with respect to the financial
condition and results of operations of Fiserv as well as presentations made
by Alex. Brown based on due diligence done by it on behalf of BHC regarding
the business, financial condition and prospects of Fiserv; and
12. Since BHC did not consider specific strategic combinations or mergers
with third parties other than the eight companies contacted by Alex. Brown
on behalf of BHC, BHC and its advisors insisted upon provisions being
included in the Merger Agreement which allow BHC to, among other things,
consider unsolicited third-party acquisition proposals, negotiate and
discuss any such proposals and terminate the Merger Agreement, subject, in
certain circumstances, to the payment of a termination fee, if the Board of
Directors of BHC were to determine, in the exercise of its fiduciary duties
based on advice of outside counsel, to recommend an alternative acquisition
proposal or to withdraw its recommendation of the Merger. See "--The Merger
Agreement--No Solicitation."
In view of the wide variety of material factors considered in connection
with its evaluation of the Merger, the Board of Directors did not find it
practicable to, and did not, quantify or otherwise attempt to assign relative
weights to specific factors considered in reaching its determination.
OPINION OF BHC'S FINANCIAL ADVISOR
BHC retained Alex. Brown on October 22, 1996 to act as BHC's financial
advisor in connection with the consideration of the adoption of a stockholders
rights plan, to analyze the various strategic alternatives available to BHC to
maximize stockholder value, to assist and advise BHC upon request in
connection with negotiations with third parties with respect to a potential
business combination and, in the event of a business combination, to render
its opinion to the Board of Directors of BHC as to the fairness, from a
financial point of view, of the consideration to be paid to BHC's Stockholders
pursuant to the Merger Agreement.
At the March 2, 1997 meeting of BHC's Board of Directors, representatives of
Alex. Brown made a presentation with respect to the Merger and rendered to the
Board its opinion, subsequently confirmed as of the
23
date of this Proxy Statement/Prospectus, that, as of such date, and subject to
the assumptions made, matters considered and limitations set forth in such
opinion and summarized below, the consideration paid was fair, from a
financial point of view, to BHC's Stockholders. No limitations were imposed by
the Board upon Alex. Brown with respect to the investigations made or
procedures followed by it in rendering its opinion.
THE FULL TEXT OF ALEX. BROWN'S WRITTEN OPINION DATED AS OF MARCH 2, 1997,
AND CONFIRMED AS OF THE DATE OF THIS PROXY STATEMENT/PROSPECTUS (THE "ALEX.
BROWN OPINION"), WHICH SETS FORTH, AMONG OTHER THINGS, ASSUMPTIONS MADE,
MATTERS CONSIDERED AND LIMITATIONS ON THE REVIEW UNDERTAKEN, IS ATTACHED
HERETO AS APPENDIX B AND IS INCORPORATED HEREIN BY REFERENCE. BHC STOCKHOLDERS
ARE URGED TO READ THE ALEX. BROWN OPINION IN ITS ENTIRETY. THE ALEX. BROWN
OPINION IS DIRECTED TO THE BOARD, ADDRESSES ONLY THE FAIRNESS OF THE
CONSIDERATION PAID TO BHC'S STOCKHOLDERS FROM A FINANCIAL POINT OF VIEW AND
DOES NOT CONSTITUTE A RECOMMENDATION TO ANY BHC STOCKHOLDER AS TO HOW SUCH
STOCKHOLDER SHOULD VOTE AT THE BHC MEETING. THE ALEX. BROWN OPINION WAS
RENDERED TO THE BHC BOARD FOR ITS CONSIDERATION IN DETERMINING WHETHER TO
APPROVE THE MERGER AGREEMENT. THE DISCUSSION OF THE ALEX. BROWN OPINION IN
THIS PROXY STATEMENT/PROSPECTUS IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
THE FULL TEXT OF THE ALEX. BROWN OPINION.
In connection with the Alex. Brown Opinion, Alex. Brown reviewed certain
publicly available financial information and other information concerning BHC
and Fiserv and certain internal analyses and other information furnished to it
by BHC. Alex. Brown also held discussions with the members of the senior
managements of BHC and Fiserv regarding the businesses and prospects of their
respective companies and the joint prospects of a combined company. In
addition, Alex. Brown (i) reviewed the reported prices and trading activity
for the Common Stock of both BHC and Fiserv, (ii) compared certain financial
and stock market information for BHC and Fiserv with similar information for
selected companies whose securities are publicly traded, (iii) reviewed the
financial terms of selected recent business combinations in the securities
brokerage industry, (iv) reviewed the terms of the Merger Agreement and (v)
performed such other studies and analyses and considered such other factors as
it deemed appropriate.
In conducting its review and arriving at its opinion, Alex. Brown assumed
and relied upon, without independent verification, the accuracy, completeness
and fairness of the information furnished to or otherwise reviewed by or
discussed with it for purposes of rendering its opinion. With respect to the
financial projections of BHC and other information relating to the prospects
of BHC and Fiserv provided to Alex. Brown by each company, Alex. Brown assumed
that such projections and other information were reasonably prepared and
reflected the best currently available judgments and estimates of the
respective managements of BHC and Fiserv as to the likely future financial
performances of their respective companies and of the combined entity. For a
discussion of managements' financial projections, see "Assumptions to
Financial Projections." The financial projections of BHC that were provided to
Alex. Brown were utilized and relied upon by Alex. Brown in the "Analysis of
Selected Publicly Traded Companies," "Contribution Analysis," "Discounted Cash
Flow Analysis" and "Pro Forma Earnings Analysis" summarized below. Alex. Brown
assumed, with the consent of BHC, that the Merger will qualify as a tax-free
transaction for federal income tax purposes. Alex. Brown did not make and it
was not provided with an independent evaluation or appraisal of the assets of
BHC or Fiserv. The Alex. Brown Opinion is based on market, economic and other
conditions as they existed and could be evaluated as of the date of the
opinion letter.
The following is a summary of the analyses performed and factors considered
by Alex. Brown in connection with the rendering of the Alex. Brown Opinion.
Historical Financial Position. In rendering its opinion, Alex. Brown
reviewed and analyzed the historical and current financial condition of BHC
which included (i) an assessment of BHC's recent financial statements, (ii) an
analysis of BHC's revenue, growth and operating performance trends, (iii) an
assessment of BHC's revenue mix, margin changes, leverage, client
concentration and product breadth, and (iv) a review of industry market
conditions including bank consolidation, internalization trends among large
banks and pricing pressures in the brokerage industry.
24
Historical Stock Price Performance. Alex. Brown reviewed and analyzed the
daily closing per share market prices and trading volume for BHC Common Stock
and Fiserv Common Stock from March 1, 1995 to February 28, 1997. Alex. Brown
also reviewed the daily closing per share market prices of the Fiserv Common
Stock and compared the movement of such daily closing prices with the movement
of the S&P 500 composite average over the period from March 1, 1995 to
February 28, 1997. Alex. Brown noted that, on a relative basis, Fiserv
performed in line with the S&P 500 composite average. Alex. Brown also
reviewed the daily closing per share market prices of Fiserv Common Stock and
compared the movement of such closing prices with the movement of a
transaction processing industry composite average (consisting of Affiliated
Computer Services, Inc., Automatic Data Processing, Inc., The BISYS Group,
Inc., Concord EFS, Inc., First Data Corporation and SunGard Data Systems Inc.)
over the period from March 1, 1995 through February 28, 1997. Alex. Brown
noted that on a relative basis the Fiserv Common Stock price lagged the
transaction processing industry composite average. This information was
presented to give the Board background information regarding the respective
stock prices of BHC and Fiserv over the periods indicated.
Analysis of Selected Publicly Traded Companies--Securities Brokerage
Industry. This analysis examines a company's valuation as compared to the
valuation in the public market of other selected publicly traded companies.
Alex. Brown compared certain financial information (based on the commonly used
valuation measurements described below) relating to BHC to certain
corresponding information from a group of seven publicly traded securities
brokerage industry related companies (consisting of The Advest Group, Inc.,
First Albany Companies Inc., JW Charles Financial Services Inc., Kinnard
Investments, Inc., The Sherwood Group, Inc., Southwest Securities Group, Inc.
and The Quick & Reilly Group, Inc. (collectively, the "Selected Brokerage
Companies")). Such financial information included, among other things, (i)
common equity valuation, (ii) capitalization ratios, (iii) operating
performance, (iv) the ratios of common equity value as adjusted for debt and
cash ("Enterprise Value") to revenues, earnings before income taxes,
depreciation and amortization ("EBTDA"), and earnings before income taxes
("EBT"), each for the latest reported twelve month period as derived from
publicly available information, and (v) ratios of common equity prices per
share ("Equity Value") to earnings per share ("EPS"). The financial
information used in connection with the multiples provided below with respect
to BHC and the Selected Brokerage Companies was based on the latest reported
twelve month period as derived from publicly available information and on
estimated EPS for calendar years 1997 and 1998 as reported by the
Institutional Brokers Estimate System ("I/B/E/S") where available or
extrapolated based upon historical growth for the Selected Brokerage
Companies. BHC's estimated EPS for calendar years 1997 and 1998 were based
upon the Management Case projections. For a discussion of management's
financial projections, see "Assumptions to Financial Projections."
Alex. Brown compared financial information of the Selected Brokerage
Companies based on public market valuation with the corresponding financial
multiples for the Merger, based on the consideration to be received of $33.50
per share if the Merger is accounted for by Fiserv as a pooling of interests
and $31.50 per share if the Merger is accounted for by Fiserv under the
purchase method; based on BHC's actual reported calendar year 1996 EPS
("Actual EPS") of $2.69 and BHC's 1996 Actual EPS adjusted so as to exclude
activity related to Citicorp Investment Services Inc., Norwest Investment
Services, Inc. and USAA Brokerage Services (the "Terminating Clients"), who
have publicly announced their intention to end their clearing relationship
with BHC, which adjusted figure is $1.55 ("Adjusted EPS"); and based upon
BHC's calendar year 1997 Management Case EPS estimate of $3.00 and BHC's 1997
Management Case EPS estimate adjusted so as to exclude activity related to the
Terminating Clients, which adjusted figure is $1.98 ("1997 Adjusted EPS").
Alex. Brown noted that, on a trailing twelve month basis, the multiple of
Enterprise Value to revenues was 3.2x for the Merger under pooling accounting
and 3.0x for the Merger under purchase accounting, compared to a range of 0.3x
to 2.2x, with a mean of 1.0x, for the Selected Brokerage Companies; the
multiple of Enterprise Value to EBTDA was 8.0x for the Merger under pooling
accounting and 7.5x for the Merger under purchase accounting, compared to a
range of 2.7x to 12.5x, with a mean of 5.8x for the Selected Brokerage
Companies, and the multiple of Enterprise Value to EBT was 8.6x for the Merger
under pooling accounting and 8.1x for the Merger under purchase accounting,
compared to a range of 2.9x to 16.6x, with a mean of 6.9x, for the Selected
Brokerage Companies. Alex. Brown further noted that the multiple of Equity
Value to trailing twelve month EPS was 12.4x
25
for the Merger under pooling accounting assuming BHC's 1996 Actual EPS, 21.6x
under pooling accounting assuming BHC's 1996 Adjusted EPS, 11.7x under
purchase accounting assuming BHC's 1996 Actual EPS and 20.3x under purchase
accounting assuming BHC's 1996 Adjusted EPS, compared to a range of 6.2x to
10.8x, with a mean of 9.3x, for the Selected Brokerage Companies; the multiple
of Equity Value to calendar year 1997 EPS was 11.2x for the Merger under
pooling accounting assuming BHC's 1997 EPS per the Management Case, 16.9x
under pooling accounting assuming BHC's 1997 Adjusted EPS, 10.5x under
purchase accounting assuming BHC's 1997 EPS per the Management Case and 15.9x
under purchase accounting assuming BHC's 1997 Adjusted EPS, compared to a
range of 4.3x to 10.7x, with a mean of 8.7x, for the Selected Brokerage
Companies. As a result of the foregoing procedures, Alex. Brown noted that the
transaction multiples for the Merger were generally within the range of the
multiples for the Selected Brokerage Companies.
Analysis of Selected Publicly Traded Companies--Transaction Processing
Industry. This analysis examines a company's valuation in the public market as
compared to the valuation in the public market of other selected publicly
traded companies. Alex. Brown compared certain financial information (based on
the commonly used valuation measurements described below) relating to Fiserv
to certain corresponding information from a group of six publicly traded
transaction processing industry related companies (consisting of Affiliated
Computer Services, Inc., Automatic Data Processing, Inc., the BISYS Group,
Inc., Concord EFS, Inc., First Data Corporation and SunGard Data Systems Inc.
(collectively, the "Selected Processing Companies")). Such financial
information included, among other things, (i) common equity market valuation,
(ii) capitalization ratios, (iii) operating performance, (iv) ratios of
Enterprise Value to revenues for the latest reported twelve month period as
derived from publicly available information, and (v) ratios of common equity
market prices per share ("Equity Value") to EPS. The financial information
used in connection with the multiples provided below with respect to Fiserv
and the Selected Processing Companies was based on the latest reported twelve
month period as derived from publicly available information and on estimated
EPS for calendar years 1997 and 1998 as reported by I/B/E/S. Alex. Brown noted
that, on a trailing twelve month basis, the multiple of Enterprise Value to
revenues was 2.1x for Fiserv compared to a range of 1.5x to 7.8x, with a mean
of 3.7x, for the Selected Processing Companies. Alex. Brown further noted that
the multiple of Equity Value to trailing twelve month EPS was 24.5x for Fiserv
compared to a range of 22.4x to 52.6x, with a mean of 30.3x, for the Selected
Processing Companies; the multiple of Equity Value to calendar year 1997 EPS
was 20.5x for Fiserv compared to a range of 18.2x to 35.4x, with a mean of
24.0x, for the Selected Processing Companies; and the multiple of Equity Value
to calendar year 1998 EPS was 17.1x for Fiserv compared to a range of 15.0x to
27.9x, with a mean of 19.8x, for the Selected Processing Companies. As a
result of the foregoing procedures, Alex. Brown noted that the multiples for
Fiserv were generally within the range of the multiples for the Selected
Processing Companies. The I/B/E/S EPS estimates for Fiserv, as of February 28,
1997, were $1.60 for the calendar year 1997 and $1.91 for the calendar year
1998.
Analysis of Selected Precedent Transactions. Alex. Brown reviewed the
financial terms, to the extent publicly available, of five pending or
completed mergers and acquisitions since March of 1993 in the securities
brokerage industry (the "Selected Transactions"). Alex. Brown calculated
various financial multiples based on certain publicly available information
for each of the Selected Transactions and compared them to corresponding
financial multiples for the Merger, based on the consideration to be received
of $33.50 per share if the Merger is accounted for by Fiserv as a pooling of
interests and $31.50 per share if the Merger is accounted for by Fiserv under
the purchase method, and based upon BHC's actual reported Calendar Year 1996
EPS ("Actual EPS") and BHC's 1996 Actual EPS adjusted so as to exclude
activity related to the Terminating Clients ("Adjusted EPS"). The five
brokerage industry transactions reviewed, in reverse chronological order of
public announcement, were: the acquisition of Freedom Securities by an
investor group in December of 1996, the acquisition of PRIMEVEST Financial
Services, Inc. by ReliaStar Financial Corporation in October of 1996, the
acquisition of Waterhouse Investor Services by Toronto-Dominion Bank in April
of 1996, the acquisition of Dreyfus Corporation by Mellon Bank Corporation in
December of 1993 and the acquisition of Chicago Research and Trading by
NationsBank Corporation in March of 1993. Alex. Brown noted that the multiple
of equity purchase price to book value was 2.4x for the Merger under pooling
accounting and 2.2x for the Merger under purchase accounting versus a range of
1.3x to 6.0x, with a mean of 2.8x, for the Selected Transactions. Alex.
26
Brown further noted that the multiple of equity purchase price to trailing
twelve month net income was 12.4x for the Merger under pooling accounting
based upon Actual EPS, 11.7x for the Merger under purchase accounting based
upon Actual EPS, 21.6x for the Merger under pooling accounting based upon
Adjusted EPS, and 20.3x for the Merger under purchase accounting based upon
Adjusted EPS versus a range of 10.7x to 20.5x, with a mean of 15.9x, for the
Selected Transactions. All multiples for the Selected Transactions were based
on public information available at the time of announcement of such
transaction, without taking into account differing market and other conditions
during the three year period during which the Selected Transactions occurred.
Premiums Paid Analysis. Alex. Brown reviewed the premiums paid, to the
extent publicly available, in 384 proposed, pending or completed mergers and
acquisitions between January 1, 1990 and December 31, 1996 in all industries
(the "Premium Transactions"). Alex. Brown calculated the premiums paid over
market for each of the Premium Transactions and compared them to the premiums
paid over market for the Merger, based on the consideration to be received of
$33.50 per share if the Merger is accounted for by Fiserv as a pooling of
interests and $31.50 per share if the Merger is accounted for by Fiserv under
the purchase method. Alex. Brown noted that the Premium Transactions exhibited
a mean premium of 41.6% to the target's per share market price one month prior
to public announcement and a mean premium of 29.9% to the target's per share
market price one day prior to public announcement, versus market premiums of
107.8% and 67.5%, respectively, for the Merger under pooling accounting
treatment and 95.3% and 57.5%, respectively, for the Merger under purchase
accounting treatment based on the BHC per share market price one month prior
to and one day prior to the March 3, 1997 public announcement of the Merger.
Contribution Analysis. Alex. Brown analyzed the relative contributions of
BHC and Fiserv, as compared to BHC's projected relative ownership of
approximately 12.0% of the shares of the combined company, to the pro forma
income statement of the combined company, based on the actual December 31,
1996 reported results for Fiserv and BHC ("Actual 1996 BHC Results"), Actual
1996 BHC Results adjusted so as to exclude activity related to the Terminating
Clients ("Adjusted 1996 BHC Results"), I/B/E/S estimates of EPS for Fiserv for
calendar years 1997 and 1998, Management Case estimates of EPS for BHC for
calendar year 1997 and calendar year 1998 ("Projected BHC EPS"), and
Management Case estimates of EPS for BHC for calendar year 1997 and calendar
year 1998 adjusted so as to exclude activity related to the Terminating
Clients ("Adjusted Projected BHC EPS"). For a discussion of managements'
financial projections, see "Assumptions to Financial Projections." Alex. Brown
noted that on a pro forma combined basis (excluding (i) the effect of any
synergies that may be realized as a result of the Merger, and (ii) non-
recurring expenses relating to the Merger), based on the twelve month period
ending December 31, 1996 for BHC and Fiserv, BHC and Fiserv would account for
approximately 9.2% and 90.8%, respectively, of the combined company's pro
forma revenue assuming Actual 1996 BHC Results, 7.2% and 92.8%, respectively,
of the combined company's pro forma revenue assuming Adjusted 1996 BHC
Results, 22.6% and 77.4%, respectively, of the combined company's pro forma
net income assuming Actual 1996 BHC Results, 14.4% and 85.6%, respectively, of
the company's pro forma net income assuming Adjusted 1996 BHC Results, 20.5%
and 79.5% respectively, of the company's estimated 1997 pro forma net income
assuming Projected BHC EPS for 1997, 14.6% and 85.4%, respectively, of the
company's estimated 1997 pro forma net income assuming Adjusted Projected BHC
EPS for 1997, 18.0% and 82.0%, respectively, of the company's estimated 1998
pro forma net income assuming Projected BHC EPS for 1998, and 16.8% and 83.2%,
respectively, of the company's estimated 1998 pro forma net income assuming
Adjusted Projected BHC EPS for 1998.
Discounted Cash Flow Analysis. Alex. Brown performed a discounted cash flow
analysis for BHC. The discounted cash flow approach values a business based on
the current value of the future cash flow that the business will generate plus
the estimated value of the business at some future date. To establish a
current value under this approach, future cash flow must be estimated and an
appropriate discount rate determined. Alex. Brown used estimates of projected
financial performance for BHC for the years 1997 through 1999 prepared by BHC
management ("Management Case"), an alternative case prepared by Alex. Brown
based upon the Management Case which revised certain assumptions made by
management in arriving at the Management Case ("Alternative Case 1") and a
second alternative case prepared by Alex. Brown based upon Alternative Case 1
27
which revised certain other assumptions made by management ("Alternative Case
2"). For each case, 1999 net income was extrapolated to the years 2000 and
2001 using an assumed annual growth rate of 16.2%, which reflects management's
assumption of BHC's steady-state organic growth rate. For a discussion of
management's financial projections, see "Assumptions to Financial
Projections."
Alex. Brown aggregated the present value of the leveraged cash flows through
2001 with the present value of a terminal value. Alex. Brown discounted these
cash flows using a discount rate range of 13% to 17%. The terminal value was
computed based on projected Net Income in calendar year 2001 and a terminal
Price/Earnings multiple of 12x. Alex. Brown arrived at such discount rates
based on its judgment of the estimated cost of equity capital of BHC, and
arrived at such terminal Price/Earnings multiple based on its review of the
trading characteristics of the common stock of the Selected Brokerage
Companies assuming a change in control premium. Alex. Brown noted that this
analysis indicated a range of values of approximately $27.00 to $32.00 per
share assuming the Management Case, $17.00 to $21.00 per share assuming
Alternative Case 1 and $13.00 to $16.00 per share assuming Alternative Case 2.
Pro Forma Combined Earnings Analysis. Alex. Brown analyzed certain pro forma
effects of the Merger. Based on such analysis, Alex. Brown computed the
resulting dilution/accretion to the combined company's EPS estimate for
calendar years 1997 and 1998, pursuant to the Merger before taking into
account any potential cost savings and other synergies that BHC and Fiserv
could achieve if the Merger were consummated and before non-recurring costs
relating to the Merger. Alex. Brown based this analysis on I/B/E/S estimates
for Fiserv, Management Case estimates of EPS for BHC for calendar year 1997
and calendar year 1998 ("Projected BHC EPS"), and Management Case estimates of
EPS for BHC for calendar year 1997 and calendar year 1998 adjusted so as to
exclude activity related to the Terminating Clients ("Adjusted Projected BHC
EPS"). For a discussion of management's financial projections, see
"Assumptions to Financial Projections." This analysis was performed assuming
equity purchase prices of $33.50 per share in the event the Merger is
accounted for by Fiserv as a pooling of interests and $31.50 per share in the
event the Merger is accounted for by Fiserv under the purchase method. Alex.
Brown noted that before taking into account any potential cost savings and
other synergies and before certain non-recurring costs relating to the Merger,
the Merger would, for the calendar years ending 1997 and 1998, be
approximately 9.6% accretive and 6.3% accretive to the combined company's EPS,
respectively, assuming pooling of interests accounting and Projected BHC EPS;
2.2% accretive and 1.3% accretive to the combined company's EPS, respectively,
assuming purchase accounting treatment and Projected BHC EPS; 2.0% and 4.7%
accretive to the combined company's EPS, respectively, assuming pooling of
interests accounting treatment and Adjusted Projected BHC EPS; and 2.5%
dilutive and 0.3% dilutive to the combined company's EPS, respectively,
assuming purchase accounting and Adjusted Projected BHC EPS.
Assumptions to Financial Projections. Three separate cases of projections of
BHC's future performance were prepared, each based upon certain differing
assumptions. The Management Case projections were based upon BHC management's
calendar year 1997 budget and management's assumptions concerning the major
factors affecting BHC's performance for calendar years 1998 and 1999. The
Management Case also included the effects of an assumed acquisition of a model
discount brokerage company (the "Acquisition") at the beginning of calendar
year 1998 and the effects of the conversion of a current BHC client's
outstanding margin debit balances to BHC's margin lending system (the "Special
Margin Debits"), both of which had a materially positive impact on BHC's
projected performance. Alex. Brown prepared the Alternative Case 1 projections
based upon the Management Case projections with certain modifications of the
assumptions underlying such projections. The Alternative Case 1 projections
were identical to the Management Case projections except for the following
modifications: (i) all effects of the Acquisition were excluded from BHC's
projected performance and (ii) management's assumptions concerning new
business generated in 1997 were revised so as to decrease the amount of new
business included in BHC's projected performance which resulted from new
client contracts. Alex. Brown prepared the Alternative Case 2 projections
based upon the Alternative Case 1 projections with certain modifications of
the assumptions underlying such projections. The Alternative Case 2
projections were identical to the Alternative Case 1 projections except for
the following modifications: (i) BHC management's assumptions concerning
transaction volume growth within BHC's existing client base were modified so
as to
28
result in slower growth for calendar years 1998 and 1999 and (ii) the effects
of the Special Margin Debits were excluded from BHC's projected performance.
Relevant Market and Economic Factors. In rendering its opinion, Alex. Brown
considered, among other factors, the condition of the U.S. stock markets,
particularly as it relates to the securities brokerage industry, and the
current level of economic activity. Alex. Brown also considered the trends of
bank consolidation and the internalization of processing services, such as
those provided by BHC, at large banks. In addition, Alex. Brown considered the
impact of potential changes in the regulatory environment within the
securities brokerage industry on BHC's business.
No company used in the analysis of selected publicly traded companies nor
any transaction used in the analysis of selected precedent transactions or the
analysis of premiums paid in selected transactions summarized above is
identical to BHC, Fiserv or the Merger. Accordingly, such analyses must take
into account differences in the financial and operating characteristics of the
Selected Brokerage Companies, Selected Processing Companies, Selected
Transactions and the Premium Transactions and other factors that would affect
the public trading value and acquisition value of the Selected Brokerage
Companies, Selected Processing Companies, Selected Transactions and the
Premium Transactions, respectively.
While the foregoing summary describes all analyses and factors that Alex.
Brown deemed material in its presentation to the BHC Board of Directors, it is
not a comprehensive description of all analyses and factors considered by
Alex. Brown. The preparation of a fairness opinion is a complex process
involving various determinations as to the most appropriate and relevant
methods of financial analysis and the applications of these methods to the
particular circumstances and, therefore, such an opinion is not readily
susceptible to summary description. Alex. Brown believes that its analyses
must be considered as a whole and that selecting portions of its analyses and
of the factors considered by it, without considering all analyses and factors,
would create an incomplete view of the evaluation process underlying the Alex.
Brown Opinion. In performing its analyses, Alex. Brown considered general
economic, market and financial conditions and other matters, many of which are
beyond the control of BHC and Fiserv. The analyses performed by Alex. Brown
are not necessarily indicative of actual values or future results, which may
be significantly more or less favorable than those suggested by such analyses.
Accordingly, such analyses and estimates are inherently subject to substantial
uncertainty. Additionally, analyses relating to the value of a business do not
purport to be appraisals or to reflect the prices at which the business
actually may be sold. Furthermore, no opinion is being expressed as to the
prices at which shares of Fiserv Common Stock may trade at any future time.
Pursuant to a letter agreement dated October 22, 1996 between BHC and Alex.
Brown, the fees to date payable to Alex. Brown for rendering the Alex. Brown
Opinion have been $250,000, which amount will be credited against a final
financial advisory fee of 0.8% of the aggregate consideration payable in
connection with the Merger, which is payable upon consummation of the Merger.
In addition, BHC has agreed to reimburse Alex. Brown for its reasonable out-
of-pocket expenses incurred in connection with rendering financial advisory
services, including fees and disbursements of its legal counsel. BHC has
agreed to indemnify Alex. Brown and its directors, officers, agents, employees
and controlling persons, for certain costs, expenses, losses, claims, damages
and liabilities related to or arising out of its rendering of services under
its engagement as financial advisor.
The Board of Directors of BHC retained Alex. Brown to act as its advisor
based upon Alex. Brown's qualifications, reputation, experience and expertise.
Alex. Brown, as a customary part of its investment banking business, is
engaged in the valuation of businesses and their securities in connection with
mergers and acquisitions, negotiated underwritings, private placements and
valuations for estate, corporate and other purposes. Alex. Brown regularly
publishes research reports regarding the securities brokerage and transaction
processing industries and the businesses and securities of Fiserv and other
publicly traded companies in these industries. Alex. Brown may actively trade
the securities of both BHC and Fiserv for its own account and for the account
of its customers and, accordingly, may at any time hold a long or short
position in such securities.
29
MANAGEMENT AND OPERATIONS OF BHC FOLLOWING THE MERGER
The Merger Agreement provides that following the Merger, George D. Dalton,
Chairman of the Board of Fiserv, who is the sole director of Fiserv Sub, will
become the sole director of the Surviving Corporation. The officers of Fiserv
Sub will become the officers of the Surviving Corporation.
At the Effective Time of the Merger, the Certificate of Incorporation and
Bylaws of the Surviving Corporation will be amended so that they are the same
as the current Certificate of Incorporation and Bylaws of Fiserv Sub, except
that the name of the Surviving Corporation will be changed to Fiserv Clearing,
Inc.
Subsequent to the Merger, Fiserv plans to operate the Surviving Corporation
as an independent subsidiary and has no present intention to move or
consolidate any of the operations of the Surviving Corporation or its
subsidiaries or to change the name of any of its subsidiaries.
THE MERGER AGREEMENT
Reference is made to the copy of the Merger Agreement attached as Appendix A
for a complete statement of the terms of the proposed Merger. The statements
contained herein with respect to the Merger Agreement and the Merger are
qualified in their entirety by the foregoing reference.
Effective Time and Consequences of the Merger
If approved by the requisite vote of the Stockholders of BHC and if all
other conditions to the consummation of the Merger are satisfied or waived,
the Merger will become effective immediately upon the filing of the
Certificate of Merger with the Secretary of State of the State of Delaware or
such other time or date thereafter as Fiserv, Fiserv Sub and BHC may agree. At
the Effective Time, Fiserv Sub shall be merged with and into BHC, which shall
be the Surviving Corporation in the Merger, the separate existence and
corporate organization of Fiserv Sub shall cease, and BHC shall succeed,
insofar as permitted by Delaware law, to all rights, assets, liabilities and
obligations of Fiserv Sub.
It is presently contemplated that the Effective Time will be May 30, 1997 or
such other date as the parties may agree.
Merger Consideration
Each outstanding share of BHC Common Stock will be converted into the right
to receive such number of shares of Fiserv Common Stock as shall equal the
Conversion Ratio, which is defined as the quotient of (x) $33.50 divided by
(y) the Average Fiserv Stock Price, which is defined as an amount equal to the
average closing price of Fiserv Common Stock as reported on NASDAQ (as
reported in The Wall Street Journal) for the 20 trading days ending on the
second trading day prior to the Effective Time. Assuming an Average Fiserv
Stock Price of $37.48 (which is the average closing price of Fiserv Common
Stock as reported on NASDAQ for the 20 trading days ended April 15, 1997), the
Merger would result in the present BHC Stockholders owning approximately 11.4%
of the Fiserv Common Stock.
No fractional shares of Fiserv Common Stock will be issued in the Merger. In
lieu of any fractional shares, each holder of BHC Common Stock who would
otherwise be entitled to receive a fractional share of Fiserv Common Stock
pursuant to the Merger will be paid an amount in cash, without interest,
rounded to the nearest cent, determined by multiplying (i) the per share
closing price of Fiserv Common Stock as reported on the NASDAQ on the date of
the Effective Time, by (ii) the fractional interest to which such holder would
otherwise be entitled. Fiserv will make available to the Exchange Agent the
cash necessary for this purpose.
Conversion of BHC Common Stock; Procedures for Exchange of Share Certificates
As soon as practicable after the Effective Time, each holder of shares of
BHC Common Stock that have been converted into the right to receive Fiserv
Common Stock, upon surrender to the Exchange Agent for cancellation of one or
more certificates for such shares of BHC Common Stock, will be entitled to
receive
30
certificates representing the number of whole shares of Fiserv Common Stock to
be issued in respect of the aggregate number of such shares of Fiserv Common
Stock previously represented by the stock certificates surrendered and cash,
if any, payable in lieu of the issuance of a fractional share.
Promptly after the Effective Time, the Exchange Agent will furnish the
former BHC Stockholders a letter of transmittal for use in converting their
BHC Common Stock certificates. The letter will contain instructions with
respect to the surrender of certificates representing shares of BHC Common
Stock and the distribution of certificates representing Fiserv Common Stock
and/or cash, as the case may be.
Subject to the provisions pertaining to cash in lieu of fractional shares in
the following sentence, until surrendered for exchange each certificate
nominally representing BHC Common Stock shall be deemed for all corporate
purposes to evidence the ownership of the number of full shares of Fiserv
Common Stock which the holder is entitled to receive upon surrender of said
certificates to the Exchange Agent. Until they have surrendered their
certificates representing shares of BHC Common Stock for exchange, BHC
Stockholders will not be entitled to receive any payment for a fractional
share interest. Any such payment will be remitted to the BHC Stockholder
entitled thereto, without interest, at the time that such certificates
representing shares of BHC Common Stock are surrendered for conversion,
subject to any applicable abandoned property, escheat or similar law.
Representations, Warranties and Covenants
The Merger Agreement contains representations and warranties as to the
organization, operation and business and financial condition of BHC and its
subsidiaries and Fiserv and Fiserv Sub. The representations and warranties
will terminate at the Effective Time. The Merger Agreement also contains
certain covenants of BHC, Fiserv and Fiserv Sub, including covenants relating
to the conduct of BHC and Fiserv prior to the Effective Time.
Federal Income Tax Consequences of the Merger
The following discussion is intended to provide a summary of certain federal
income tax consequences of the Merger.
The Merger Agreement provides that, for federal income tax purposes, BHC and
Fiserv intend that the Merger constitute a tax-free "reorganization" within
the meaning of Sections 368(a)(1)(A) and 368(a)(2)(E) of the Code (a "Tax-Free
Reorganization"). BHC and Fiserv intend to treat the Merger as a Tax-Free
Reorganization in their federal income tax returns. The principal federal
income tax consequences of a Tax-Free Reorganization, under currently
applicable law, are as follows: (i) no gain or loss would be recognized by BHC
or Fiserv as a result of the Merger; (ii) no gain or loss would be recognized
by the Stockholders of BHC on the exchange of their shares of BHC Common Stock
solely for shares of Fiserv Common Stock pursuant to the Merger (except in
respect of cash received in lieu of fractional shares as described below);
(iii) the basis of the shares of Fiserv Common Stock received by a former
Stockholder of BHC pursuant to the Merger should be the same as the tax basis
for the shares of BHC Common Stock exchanged therefor (reduced by any basis
allocated to fractional share interests to which a Stockholder may be entitled
and for which cash is received); and (iv) the holding period of shares of
Fiserv Common Stock received by a former Stockholder of BHC pursuant to the
Merger would include the period during which the Stockholder held such shares
of BHC Common Stock.
A holder of BHC Common Stock who receives cash in lieu of a fractional share
of Fiserv Common Stock issued in a Tax-Free Reorganization would be treated as
first having received such fractional share and then as having received cash
in redemption thereof. If such redemption were treated as not essentially
equivalent to a dividend within the meaning of Section 302(b) of the Code,
such Stockholder would recognize capital gain or capital loss equal to the
difference between the cash received and the tax basis allocated to his
fractional share. Such capital gain or loss would be long-term capital gain or
loss if such BHC Common Stock has been held for more than one year as of the
Effective Time.
31
This analysis is based on certain assumptions, including without limitation
assumptions that: (i) the representations and warranties set forth in the
Merger Agreement will be true, correct and complete as if made at the
Effective Time; (ii) there is no plan or intention on the part of the holders
of BHC Common Stock to dispose of a prescribed amount of shares of Fiserv
Common Stock acquired in the Merger or BHC Common Stock in anticipation of the
Merger (as further discussed below); (iii) no consideration other than shares
of Fiserv Common Stock and cash paid for fractional shares will be received by
holders of the shares of BHC Common Stock for their shares of BHC Common
Stock; and (iv) following the Merger, BHC will hold (a) at least 90% of the
fair market value of its net assets and at least 70% of the fair market value
of its gross assets held immediately prior to the Merger, and (b) at least 90%
of the fair market value of Fiserv Sub's net assets and at least 70% of the
fair market value of Fiserv Sub's gross assets held immediately prior to the
Merger (for purposes of this assumption, amounts paid by BHC or Fiserv Sub to
Stockholders who receive cash or other property (including cash for fractional
shares), amounts used by BHC or Fiserv Sub to pay reorganization expenses, and
all redemptions and distributions (except for regular, normal dividends) made
by BHC will be included in the assets of BHC or Fiserv Sub, respectively,
immediately prior to the Merger). Although Fiserv and BHC believe the
foregoing assumptions are and will be correct, no assurances to that effect
can be given.
Under guidelines published in Revenue Procedure 77-37, 1977-2 C.B. 568 (the
"IRS Guidelines"), the Internal Revenue Service will issue a ruling that a
transaction constitutes a Tax-Free Reorganization if certain factual
representations can be made with respect thereto. In particular, the IRS
Guidelines require a representation that there will be a fifty percent (50%)
level of continuity of shareholder interest. BHC Stockholders should note,
however, that the IRS Guidelines are intended to serve only as a description
of the circumstances in which the Internal Revenue Service will issue a
favorable ruling and not as a statement of the substantive law regarding the
qualification of a transaction as a Tax-Free Reorganization. While continuity
of shareholder interest is a requirement for tax-free reorganization
treatment, Supreme Court precedent supports a lesser degree of continuity than
that required by the IRS Guidelines.
Although BHC expects the IRS Guidelines to be satisfied and to receive the
opinion of Ballard Spahr Andrews & Ingersoll as to certain Federal income tax
consequences of the Merger, no advance ruling has been requested from the
Internal Revenue Service as to the tax consequences of the Merger. There
cannot, therefore, be any assurance that the treatment of the Merger by
Fiserv, BHC or the Stockholders of BHC as a Tax-Free Reorganization will not
be challenged by the Internal Revenue Service, or that any such challenge
would not be sustained.
If the Merger is not characterized as a Tax-Free Reorganization, the
principal Federal income tax consequences, under currently applicable law,
would be as follows: (i) no gain or loss would be recognized by Fiserv or BHC
as a result of the Merger; (ii) gain or loss would be recognized by the
holders of BHC Common Stock upon the exchange of their BHC Common Stock solely
for Fiserv Common Stock; (iii) the tax basis of Fiserv Common Stock to be
received by the holders of BHC Common Stock in the Merger would be the fair
market value of such Fiserv Common Stock as of the Effective Time; and (iv)
the holding period of Fiserv Common Stock to be received by the holders of BHC
Common Stock pursuant to the Merger would begin the day after the Effective
Time.
THE DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL INFORMATION ONLY. IT
DOES NOT ADDRESS EVERY ASPECT OF THE FEDERAL INCOME TAX LAWS THAT MAY BE
RELEVANT TO THE HOLDERS OF BHC COMMON STOCK IN LIGHT OF THEIR PERSONAL
CIRCUMSTANCES OR TO CERTAIN TYPES OF HOLDERS SUBJECT TO SPECIAL TAX TREATMENT
AND IS GENERALLY LIMITED TO PERSONS WHO HOLD BHC COMMON STOCK AS A CAPITAL
ASSET. IN ADDITION, IT DOES NOT DISCUSS ANY STATE, LOCAL OR FOREIGN OR OTHER
FEDERAL TAX ASPECTS OF THE MERGER. THE DISCUSSION IS BASED ON CURRENTLY
EXISTING PROVISIONS OF THE CODE, EXISTING AND PROPOSED TREASURY REGULATIONS
THEREUNDER AND CURRENT ADMINISTRATIVE RULINGS AND COURT DECISIONS. ALL OF THE
FOREGOING ARE SUBJECT TO CHANGE RETROACTIVELY AS WELL AS PROSPECTIVELY AND ANY
SUCH CHANGE COULD AFFECT THE CONTINUING VALIDITY OF THIS DISCUSSION. EACH
32
STOCKHOLDER OF BHC SHOULD CONSULT HIS OR HER OWN TAX ADVISOR AS TO THE
SPECIFIC TAX CONSEQUENCES OF THE MERGER TO HIM OR HER, INCLUDING THE
APPLICATION AND EFFECT OF FEDERAL, STATE, LOCAL AND FOREIGN TAX LAWS.
Conversion of Options to Purchase BHC Common Stock; Benefit Plans
At the Effective Time, each holder of an option to purchase shares of BHC
Common Stock (each, an "Option") granted under BHC's Long Term Incentive Plan,
Directors' Stock Option Plan or 1992 Stock Option Plan (collectively, the
"Option Plans") then outstanding will be assumed by Fiserv and will be deemed
to constitute an option to purchase, on the same terms and conditions as were
applicable under such Option at the Effective Time, that number of shares of
Fiserv Common Stock (with any fractional share of Fiserv Common Stock being
disregarded) equal to the product of the Conversion Ratio and the number of
shares of BHC Common Stock subject to such Option, at a price per share
(rounded up to the nearest full cent) equal to the exercise price for the
shares of BHC Common Stock subject to such Option divided by the Conversion
Ratio. All Options outstanding at the date of the approval of the Merger
Agreement by stockholders will either be exercisable, or will accelerate and
become fully vested and exercisable upon such approval by Stockholders. As of
December 31, 1996, Options to purchase 647,750 shares of BHC Common Stock were
outstanding under the Option Plans at exercise prices ranging from $6.40 to
$27.50.
Under the Merger Agreement, Fiserv has agreed to continue the BHC benefit
plans in effect as of March 2, 1997 until December 31, 1999 for employees of
BHC and its subsidiaries, or to provide benefits to such persons during such
period that are in the aggregate substantially comparable to the benefits
offered under such BHC benefit plans.
Conditions to the Merger
The obligations of Fiserv and BHC to consummate the Merger are subject to
the fulfillment or waiver (where permissible) of certain conditions,
including: (i) obtaining the approval of the Stockholders of BHC; (ii)
approval for quotation on NASDAQ, subject to official notice of issuance, of
the Fiserv Common Stock to be issued in connection with the Merger; (iii) the
effectiveness of the Registration Statement of which this Proxy
Statement/Prospectus is a part; (iv) no order being entered in any action or
proceeding or other legal restraint or prohibition preventing the consummation
of the Merger; (v) the receipt by each party of various legal opinions and
other certificates, consents, reports and approvals from the other parties to
the Merger and from third parties; (vi) the accuracy in all material respects
of the representations and warranties of each party and compliance with all
covenants and conditions by each party; and (vii) the absence of any Material
Adverse Change (as defined in the Merger Agreement) in the business or
financial condition of Fiserv or BHC. The relevant waiting period under the
Hart-Scott-Rodino Antitrust Improvement Act of 1976 has already expired as of
the date hereof.
In the event Fiserv reasonably determines the Pooling Condition can be
satisfied, then, subject to the other terms and conditions of the Merger
Agreement, the Merger shall be consummated. If Fiserv reasonably determines
that the Pooling Condition cannot be satisfied, then, subject to the other
terms and conditions of the Merger Agreement, the Merger shall be consummated,
provided, however, that the Merger consideration shall be adjusted by
modifying the Conversion Ratio such that $33.50 is replaced with $31.50.
Fiserv's management currently believes that, subject to BHC's sale of shares
in the BHC Stock Offering, the Pooling Condition will be satisfied.
Amendments and Termination
The Merger Agreement may be amended by a written agreement executed by BHC,
Fiserv and Fiserv Sub either before or after the Stockholders of BHC approve
the Merger. The Merger Agreement may be terminated and the Merger abandoned at
any time prior to the Effective Time by mutual agreement of the Boards of
Directors of Fiserv and BHC, or by the Board of Directors of any party if any
of the conditions applicable to such party to effect the Merger is not
satisfied or waived on or before the Effective Time or if the Merger is not
33
effective on or before six months after the scheduled Closing Date, provided
that the party seeking to terminate the Merger Agreement is not responsible
for the failure of the Merger to occur prior to such date.
No Solicitation
BHC has agreed that it will not solicit, directly or indirectly, any BHC
Acquisition Proposal.
In the event (i) BHC terminates the Merger Agreement because another person
has made a BHC Acquisition Proposal that the BHC Board of Directors determines
in good faith that the failure to accept such BHC Acquisition Proposal could
reasonably be deemed to cause the members of the Board of Directors to breach
their fiduciary duties under applicable law, and (ii) within six months of
such termination, BHC shall have entered into, or shall have publicly
announced its intention to enter into, an agreement or agreement in principle
with respect to any BHC Acquisition Proposal, then BHC shall pay Fiserv a
termination fee of $2,000,000.
Expenses of the Merger
Whether or not the Merger is consummated, each party to the Merger Agreement
will pay its expenses incurred in connection with the Merger.
ACCOUNTING TREATMENT
It is anticipated that the Merger will be accounted for as a pooling of
interests. The pooling of interests method of accounting assumes that the
combining companies have been merged from inception, and the historical
financial statements for periods prior to consummation of the Merger are
restated as though the companies had been combined from inception. The
restated financial statements are adjusted to conform with the accounting
policies of the separate companies. See "The Merger Agreement--Conditions to
the Merger" and "Unaudited Pro Forma Condensed Consolidated Financial
Information."
Because of certain recent purchases by BHC of BHC Common Stock, BHC may be
required to sell approximately 200,000 shares of BHC Common Stock (either
through the exercise of outstanding stock options or by a stock offering to
unrelated parties) prior to the Effective Time in order for the Merger to be
accounted for as a pooling of interests. As part of the Merger Agreement, BHC
has agreed to sell such shares prior to the Effective Time as may be necessary
to receive such accounting treatment. See "The Merger Agreement--Conditions to
the Merger" and "Issuance of Additional Shares."
RESALE OF FISERV COMMON STOCK BY AFFILIATES
Fiserv Common Stock to be issued to stockholders of BHC in connection with
the Merger has been registered under the Securities Act. Fiserv Common Stock
received by the Stockholders of BHC upon consummation of the Merger will be
freely transferable under the Securities Act, except for shares issued to any
person who may be deemed an "Affiliate" (as defined below) of BHC within the
meaning of Rule 145 under the Securities Act ("Rule 145"). "Affiliates" are
generally defined as persons who control, are controlled by, or are under
common control with BHC at the time of the Special Meeting (generally,
directors, certain executive officers and major stockholders). Affiliates of
BHC may not sell their shares of Fiserv Common Stock acquired in connection
with the Merger, except pursuant to an effective registration statement under
the Securities Act covering such shares or in compliance with Rule 145 or
another applicable exemption from the registration requirements of the
Securities Act. In general, under Rule 145, for one year following the
Effective Time, an Affiliate (together with certain related persons) would be
entitled to sell shares of Fiserv Common Stock acquired in connection with the
Merger only through unsolicited "broker transactions" or in transactions
directly with a "market maker," as such terms are defined in Rule 144 under
the Securities Act. Additionally, the number of shares to be sold by an
Affiliate (together with certain related persons and certain persons acting in
concert) during such one-year period within any three-month period for
purposes of Rule 145 may not exceed the greater of 1% of the outstanding
shares of Fiserv Common Stock or the average weekly trading volume of such
stock during the four calendar weeks preceding such sale. Rule 145 would
remain available to Affiliates only if Fiserv
34
remained current with its information filings with the Commission under the
Exchange Act. One year after the Effective Time, an Affiliate would be able to
sell such Fiserv Common Stock without such manner of sale or volume
limitations, provided that Fiserv was current with its Exchange Act
information filings and such Affiliate was not then an Affiliate of Fiserv.
Two years after the Effective Time, an Affiliate would be able to sell such
shares of Fiserv Common Stock without any restrictions provided such Affiliate
has not been an Affiliate of Fiserv for at least three months prior thereto.
CERTAIN REGULATORY MATTERS
No federal or state regulatory requirements remain to be complied with in
connection with the Merger, except for certain required notifications and
closing and post-closing filings.
RIGHTS OF DISSENTING STOCKHOLDERS
So long as BHC Common Stock is quoted on NASDAQ on the Record Date of the
BHC Special Meeting and Fiserv Common Stock is quoted on NASDAQ at the
Effective Time, holders of BHC Common Stock shall have no appraisal or
dissenters' rights in connection with the Merger.
INTERESTS OF CERTAIN PERSONS IN THE MERGER
Change of Control Agreements. Thirteen key executives, including William T.
Spane, Jr., Lawrence E. Donato, Robert B. Kaplan, and Richard M. Bare, are
parties to Change of Control Employment Agreements with BHC dated as of July
20, 1994 (the "Change of Control Agreements"). The Change of Control
Agreements become effective only in the event of a Change of Control of BHC,
which is defined to include the acquisition of 20% or more of BHC Common Stock
by a person or group, a change in a majority of the current Board of Directors
(other than changes approved by the then existing Board), or a merger,
liquidation, dissolution or sale of all or substantially all of the assets of
BHC. A Change of Control will occur upon approval of the Merger Agreement by
the BHC Stockholders.
The Change of Control Agreements are all substantially identical, except as
noted below. Each Change of Control Agreement provides that, following a
Change of Control, the executive will continue to be employed in the position
he held prior to the Change of Control (with comparable authority, duties and
responsibilities) and will receive comparable compensation and benefits, until
the earlier of the second anniversary (or the third anniversary in the case of
Messrs. Spane and Donato) of the Change of Control (and thereafter for
successive one-year periods unless prior written notice is given by either
party) or his normal retirement date (the "Employment Period").
If an executive's employment is terminated during the Employment Period
(other than for "cause" or as a result of death or disability) or if the
executive terminates his employment during the Employment Period for "good
reason," he will be entitled to receive a lump sum severance payment equal to
(a) his unpaid base salary earned through the date of termination, (b) a
proportionate bonus based upon his annual bonus for the last full fiscal year
ended during the Employment Period or the last full fiscal year before the
Change of Control, whichever is greater (the "Recent Bonus"), (c) one times
(or two times in the case of Messrs. Spane and Donato) the sum of his then
current annual base salary plus his Recent Bonus, (d) all compensation
previously deferred and not yet paid and (e) the difference between the
actuarial equivalent of the aggregate pension benefits payable to the
executive under the qualified pension plan and the nonqualified supplemental
retirement plan if he had remained employed until the end of the Employment
Period and the actuarial equivalent of the pension benefits actually payable
to him. In addition, for the remainder of the Employment Period, the executive
will continue to receive welfare benefits comparable to those he was receiving
prior to the date of termination. The definition of "good reason" under the
Change of Control Agreements includes the diminution of the executive's
responsibilities, the assignment to the executive of inappropriate duties, the
failure to comply with the compensation provisions under the Change of Control
Agreements, and the transfer of the executive to a location
35
more than 50 miles away. In addition, a termination by the executive for any
reason during the 30-day period following the first anniversary of the Change
of Control will be deemed to be termination for "good reason."
Amounts payable under the Change of Control Agreements will be reduced to
the extent necessary to avoid the imposition of an excise tax under Sections
280G and 4999 of the Code.
Supplemental Retirement Plan. BHC maintains a supplemental nonqualified
unfunded pension plan (the "Supplemental Retirement Plan") for certain
officers of BHC which is accounted for by charges to earnings of BHC in an
amount that, if the plan were funded, would be sufficient to meet the
projected benefit obligation. The Supplemental Retirement Plan provides
participants with pension benefits that would have been payable under BHC's
tax-qualified noncontributory defined benefit pension plan, but for the
applicable legal limit.
In October, 1995 BHC and PNC Bank, National Association, entered into an
irrevocable trust agreement (the "Trust") for the purpose of enabling BHC, in
its sole discretion, to set aside assets to satisfy its obligations under the
Supplemental Retirement Plan. Following a Change of Control (as defined in the
Change of Control Agreements), BHC is required to irrevocably contribute to
the Trust an amount equal to the sum necessary to provide for the satisfaction
of the benefits to which the participants are entitled pursuant to the terms
of the Supplemental Retirement Plan as of the date of the Change of Control.
RIGHTS PLAN
Pursuant to the Merger Agreement, BHC will take such actions as may be
necessary or appropriate to amend the Rights Agreement dated November 12, 1996
between BHC and American Stock Transfer & Trust Co., as amended (the "Rights
Agreement") so that it terminates prior to the consummation of the
transactions contemplated by the Merger Agreement.
ISSUANCE OF ADDITIONAL SHARES
Because of earlier purchases of BHC of its Common Stock, BHC may be required
to sell approximately 200,000 shares of BHC Common Stock (either through the
exercise of outstanding stock options or by a stock offering to unrelated
parties) prior to the Effective Time in order for the Merger to be accounted
for as a pooling of interests. Pursuant to the Merger Agreement, prior to the
Effective Time, BHC shall sell in a registered public offering or registered
block trade (the "BHC Stock Offering"), as designated by Fiserv, such number
of shares as may be necessary to fulfill the Pooling Condition. The BHC Stock
Offering shall be at the market price per share and shall be accomplished on
terms and conditions customary for a registered public offering or registered
block trade, as the case may be. The BHC Stock Offering will be subject to
conditions set forth in an underwriting agreement (if any). The additional
shares of BHC Common Stock will be issued prior to the Effective Time, and
will be treated for all purposes as issued and outstanding shares at the
Effective Time.
36
COMPARATIVE MARKET PRICES AND DIVIDENDS
Shares of Fiserv Common Stock (NASDAQ Symbol: FISV) and BHC Common Stock
(NASDAQ Symbol: BHCF) are traded in the over-the-counter market and appear on
NASDAQ. The following table sets forth, for the calendar periods indicated,
the closing price per share of Fiserv Common Stock and BHC Common Stock as
reported by NASDAQ.
FISERV BHC
COMMON STOCK COMMON STOCK
----------------- ---------------
HIGH LOW HIGH LOW
------- ------- ------- -------
1995:
First Quarter............................. $27 3/4 $ 21 $14 1/4 $ 9 1/16
Second Quarter............................ 28 3/8 25 3/4 16 3/8 14 1/8
Third Quarter............................. 31 25 1/2 20 1/8 15 1/2
Fourth Quarter............................ 30 1/8 25 1/2 19 1/2 16 1/4
1996:
First Quarter............................. $ 32 $25 3/8 $18 5/8 $12 7/8
Second Quarter............................ 33 3/8 28 1/16 14 3/4 12 1/2
Third Quarter............................. 38 11/16 28 5/8 15 1/8 13
Fourth Quarter............................ 39 5/8 34 16 3/4 13
1997:
First Quarter............................. $39 $32 3/4 $32 5/8 $15 1/4
Second Quarter (through April 15, 1997)... 38 3/8 36 3/4 32 7/8 32 1/8
On February 28, 1997, the last full trading day prior to the joint public
announcement that BHC and Fiserv had executed the Merger Agreement, the
closing prices per share of Fiserv Common Stock and BHC Common Stock as
reported by NASDAQ were $32.75 and $20.00, respectively.
On April 15, 1997, the closing prices per share of Fiserv Common Stock and
BHC Common Stock as reported by NASDAQ were $38.375 and $32.50, respectively.
Stockholders of BHC are urged to obtain current market quotations for shares
of Fiserv Common Stock and BHC Common Stock.
As of April 15, 1997, BHC had approximately 1,400 Stockholders of record. As
of April 15, 1997, Fiserv had approximately 30,000 Stockholders of record.
Fiserv has never declared or paid any cash dividends or made any other
distribution on the Fiserv Common Stock, and it is anticipated that in the
foreseeable future Fiserv will follow its policy of retaining any earnings for
use in its business. Any future determination as to declaration and payment of
dividends will be made at the discretion of the Board of Directors of Fiserv.
BHC has historically paid cash dividends on a quarterly basis. For each of
the years ended December 31, 1995 and December 31, 1996, BHC paid quarterly
cash dividends in the amount of $.03 per share, for aggregate annual cash
dividends of $.12 per share.
37
FISERV SELECTED FINANCIAL DATA
The following table sets forth selected consolidated financial data of
Fiserv. The income statement data in the table for the three years ended
December 31, 1996, and the balance sheet data as of December 31, 1995 and
1996, have been derived from Fiserv's consolidated financial statements
incorporated by reference herein, which have been audited by Deloitte & Touche
LLP, independent auditors. The income statement data in the table for the two
years ended December 31, 1993, and the balance sheet data as of December 31,
1992, 1993 and 1994, have been derived from Fiserv's audited consolidated
financial statements which are not incorporated by reference herein.
YEAR ENDED DECEMBER 31,
------------------------------------------------
1992 1993 1994 1995(1) 1996
-------- -------- -------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
STATEMENT OF OPERATIONS DATA:
Revenues...................... $341,448 $467,863 $579,839 $703,380 $798,268
-------- -------- -------- -------- --------
Cost of revenues:
Salaries, commissions and
payroll related costs...... 170,106 223,271 281,651 330,845 371,526
Data processing expenses,
rentals and
tele-communication costs... 44,383 72,524 81,320 95,798 90,919
Other operating expenses.... 68,788 90,162 109,975 125,498 145,230
Depreciation and amortiza-
tion of property and equip-
ment....................... 16,596 22,450 31,350 38,480 42,241
Purchased incomplete soft-
ware technology............ 172,970
Amortization of intangible
assets..................... 6,589 9,098 10,846 25,880 20,983
Amortization (capitaliza-
tion) of internally gener-
ated computer software--
net........................ (6,757) (7,185) (9,599) (6,382) 3,732
-------- -------- -------- -------- --------
Total......................... 299,705 410,320 505,543 783,089 674,631
-------- -------- -------- -------- --------
Operating income (loss)....... 41,743 57,543 74,296 (79,709) 123,637
Interest expense--net......... 2,452 4,366 6,951 18,822 19,088
-------- -------- -------- -------- --------
Income (loss) before income
taxes........................ 39,291 53,177 67,345 (98,531) 104,549
Income tax provision (cred-
it).......................... 14,925 20,464 26,938 (38,668) 42,865
-------- -------- -------- -------- --------
Net income (loss)............. $ 24,366 $ 32,713 $ 40,407 $(59,863) $ 61,684
======== ======== ======== ======== ========
Net income (loss) per common
and common equivalent share.. $ 0.69 $ 0.83 $ 0.99 $ (1.36) $ 1.34
======== ======== ======== ======== ========
Shares used in computing net
income per share............. 35,379 39,455 40,735 44,008 46,198
======== ======== ======== ======== ========
- --------
(1) 1995 includes certain charges related to the acquisition of Information
Technology, Inc. ("ITI"). The charges are a pre-tax special, one-time,
non-cash charge of $173 million to expense the purchased ITI Premier II
research and development and a pre-tax charge of $9.9 million for the
accelerated amortization of the completed ITI Premier I software. The
combined after-tax charge was $109.6 million ($2.49 per share). Net income
and net income per share before such charges was $49.8 million and $1.13,
respectively.
YEAR ENDED DECEMBER 31,
------------------------------------------------------
1992 1993 1994 1995 1996
---------- ---------- ---------- ---------- ----------
(IN THOUSANDS)
BALANCE SHEET DATA:
Total assets.......... $1,097,339 $1,395,403 $1,661,345 $1,885,299 $1,908,519
Long-term debt and
other long-term
obligations.......... 59,472 122,417 150,016 383,416 272,864
Stockholders' equity.. $ 195,630 $ 312,873 $ 358,722 $ 434,262 $ 507,270
38
FISERV MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated, the relative
percentage which certain items in Fiserv's consolidated statements of
operations bear to revenues and the percentage change in those items from
period to period. The table and the following discussion excludes certain
charges to 1995 operations associated with the acquisition of Information
Technology, Inc., aggregating $182.9 million, relating to the writeoff of
incomplete software technology and accelerated amortization of completed
software acquired.
PERIOD TO PERIOD
PERCENTAGE OF REVENUES PERCENTAGE
YEAR ENDED DECEMBER 31, INCREASE (DECREASE)
------------------------- -----------------------
1995 1996
1994 1995 1996 VS. 1994 VS. 1995
------- ------- ------- --------- ----------
Revenues: 100% 100% 100% 21.3% 13.4%
------- ------- -------
Cost of Revenues:
Salaries, commissions and
payroll related costs... 48.6 47.0 46.5 17.5 12.3
Data processing expenses,
rentals and
telecommunication
costs................... 14.0 13.6 11.4 17.8 (5.1)
Other operating
expenses................ 19.0 17.8 18.2 14.1 15.7
Depreciation and
amortization of
equipment and
improvements............ 5.4 5.5 5.3 22.7 9.8
Amortization of
intangible assets....... 1.9 2.3 2.6 47.2 31.5
Amortization
(capitalization) of
internally generated
software--net........... (1.7) (0.9) 0.5 (33.5) (158.5)
------- ------- -------
Total cost of
revenues.............. 87.2 85.3 84.5 18.7 12.4
------- ------- -------
Operating income........... 12.8% 14.7% 15.5% 38.9 19.8
Income before income
taxes..................... 11.6% 12.0% 13.1% 25.2 23.9
Net Income................. 7.0% 7.1% 7.7% 23.2 23.9
======= ======= =======
Revenues increased $94,888,000 in 1996 and $123,541,000 in 1995. In both
years, approximately 55% of the growth resulted from the inclusion of revenues
from the date of purchase of acquired businesses and the balance in each year
from the net addition of new clients, growth in the transaction volume
experienced by existing clients and price increases.
Cost of revenues increased $74,430,000 in 1996 and $94,658,000 in 1995. As a
percentage of revenues, cost of revenues decreased .8% from 1995 to 1996 and
1.9% from 1994 to 1995. The make up of cost of revenues has been significantly
affected in both years by business acquisitions and by changes in the mix of
Fiserv's business as sales of software and related support activities and item
processing and electronic funds transfer operations have enjoyed an increasing
percentage of total revenues.
A significant portion of the purchase price of Fiserv's acquisitions has
been allocated to intangible assets, such as client contracts, computer
software, non-competition agreements and goodwill, which are being amortized
over time, generally three to 40 years. Amortization of these costs increased
$5,021,000 from 1995 to 1996 and $5,116,000 from 1994 to 1995. As a percentage
of revenues, these costs also increased in both years.
Capitalization of internally generated computer software is stated net of
amortization and decreased $3,217,000 in 1995 and $10,114,000 in 1996. Net
software capitalized was more than offset by amortization in 1996 due to the
accelerated amortization of software resulting from the planned consolidation
of certain product lines.
39
Operating income increased $20,458,000 in 1996 and $28,883,000 in 1995. As a
percentage of revenues, operating income increased .8% in 1996 and 1.9% in
1995. The effective income tax rate was 41% in 1996 and 1995 and 40% in 1994.
The trend to higher income tax rates results from net increases in non-
deductible permanent differences. The effective income tax rate for 1997 is
expected to remain at 41%.
Fiserv's growth has been largely accomplished through the acquisition of
entities engaged in businesses which are complementary to its operations.
Management believes that a number of acquisition candidates are available
which would further enhance its competitive position and plans to pursue them
vigorously. Management is engaged in an ongoing program to reduce expenses
related to acquisitions by eliminating operating redundancies. Fiserv's
approach has been to move slowly in achieving this goal in order to minimize
the amount of disruption experienced by its clients and the potential loss of
clients due to this program.
LIQUIDITY AND CAPITAL RESOURCES
The following table summarizes Fiserv's primary sources of funds:
YEAR ENDED DECEMBER 31,
----------------------------
1994 1995 1996
-------- -------- ---------
(IN THOUSANDS)
Cash provided by operating activities......... $ 67,283 $ 88,606 $ 148,900
Issuance of common stock-net.................. 1,918 638 4,896
Decrease (increase) in investments............ (28,575) 12,265 22,416
Increase (decrease) in net borrowings......... 26,445 231,827 (110,940)
-------- -------- ---------
Total......................................... $ 67,071 $333,336 $ 65,272
======== ======== =========
Fiserv has applied a significant portion of its cash flow from operations
and proceeds of its common stock offerings to acquisitions and the reduction
of long-term debt and invests the remainder in short-term obligations until it
is needed for further acquisitions or operating purposes.
Fiserv believes that its cash flow from operations together with other
available sources of funds will be adequate to meet its funding requirements.
In the event that Fiserv makes significant future acquisitions, however, it
may raise funds through additional borrowings or issuance of securities.
BUSINESS AND PROPERTIES OF FISERV
BUSINESS
Fiserv, with operations in 75 cities, including 15 cities in Canada, England
and Singapore, is a leading independent provider of financial data processing
systems and related information management services and products to banks,
credit unions, mortgage banks, savings institutions and other financial
intermediaries. These services and products are based primarily on proprietary
software developed by Fiserv and maintained on computers located at data
processing centers throughout the United States. Fiserv is ranked as the
nation's leading data processing provider for banks and savings institutions
in terms of total clients served and is the nation's second leading data
processing provider for credit unions and mortgage banks.
Fiserv directly supports account and transaction processing software systems
for approximately 3,383 financial institutions, maintaining approximately 50
million service bureau accounts. Fiserv delivers this account and transaction
processing in all four of the traditional delivery modes: service bureau;
facilities management; resource management; and in-house solutions. Fiserv
also provides electronic banking services, which include Automated Teller
Machine ("ATM")/Electronic Funds Transfer ("EFT") services to financial
institutions, and processing approximately 200 million ATM transactions
annually. Fiserv also provides check and share draft remittance and back-
office processing to financial institutions, handling approximately over 3.6
billion prime pass items per year through its regional item processing centers
located in over 45 cities in North America. In
40
addition, Fiserv provides trust administration services for IRAs and other
retirement plans, and furnishes microcomputer software to financial
institutions for executive information and decision support systems. The total
client base served by Fiserv includes more than 5,000 financial institutions.
Fiserv believes that its focus on customer service and the contractual nature
of its business, combined with its historical renewal experience, provide a
high level of recurring revenues.
Fiserv was formed on July 31, 1984, through the combination of two major
regional data processing firms located in Milwaukee, Wisconsin, and Tampa,
Florida. These firms--First Data Processing of Milwaukee and Sunshine State
Systems of Tampa--began their operations in 1964 and 1971, respectively, as
the data processing operations of their parent financial institutions.
Historically, operations were expanded by developing a range of services for
these parent organizations as well as other financial institutions.
Since Fiserv's formation in 1984, it has expanded its operations through
over 60 acquisitions and internally through the growth of existing clients.
From 1988 to 1996, Fiserv's revenues increased from $125.0 million to $798.3
million, its operating income increased from $15.5 million to $123.6 million
and its net income grew from $9.2 million to $61.7 million. During this
period, net income per common and common equivalent share increased from $.33
to $1.34.
BUSINESS RESOURCES
Fiserv conducts the following operations nationwide: financial data
processing, software system development, item processing and check imaging,
multiple technology support and related product businesses. In addition,
Fiserv has business support centers in Canada, England and Singapore.
The SAVINGS & COMMUNITY BANK GROUP provides service bureau processing and
resource management services for savings institution and community bank
clients and item processing services for all Fiserv clients nationwide.
Business units within the Savings & Community Bank Group include the
following:
Savings Institutions Division with business units in New Haven, Connecticut;
Tampa, Florida; Cleveland, Ohio; Pittsburgh, Pennsylvania; San Antonio, Texas;
Seattle, Washington; and Brookfield, Wisconsin.
Banking Division with business units in Los Angeles, California; Miami,
Florida; Atlanta, Georgia; Des Moines, Iowa; Bowling Green, Kentucky; Boston,
Massachusetts; Mendota Heights, Minnesota; Amarillo, Beaumont, Houston and San
Antonio, Texas; and Brookfield, Wisconsin.
Northern Item Processing Region with business units in New Haven,
Connecticut; Chicago, Marion and Pontiac, Illinois; Boston, Massachusetts;
Piscataway, New Jersey; Lake Success, New York; and Milwaukee, Wisconsin.
Southern Item Processing Region with business units in Little Rock,
Arkansas; Jacksonville and Miami, Florida; Atlanta and Macon, Georgia; New
Orleans, Louisiana; and Beaumont, Dallas, Houston and San Antonio, Texas.
Western Item Processing Region with business units in Phoenix, Arizona;
Alameda, Fresno, Fullerton, Sacramento, San Diego, San Leandro, Van Nuys and
Walnut, California; Denver, Colorado; Portland, Oregon; and Seattle,
Washington.
Fiserv Canada with item processing operations in Burlington, Calgary,
Edmonton, Halifax, London, Montreal, Ottawa, Regina, St. Catherines, Toronto,
Vancouver, Victoria and Winnipeg, Canada.
41
The BANK & CREDIT UNION GROUP provides service bureau processing, in-house
software systems and strategic outsourcing for national and international
bank, mortgage bank and credit union clients. Business units within the Bank &
Credit Union Group include the following:
CBS Worldwide Division with business units in Fresno, California;
Orlando, Florida; Arlington Heights, Illinois; London, England; and
Singapore.
Financial Institutions Outsourcing Division with business units in Covina
and Fresno, California; Honolulu, Hawaii; Arlington Heights, Illinois;
Oklahoma City, Oklahoma; and Philadelphia and Pittsburgh, Pennsylvania.
Credit Union Division with business units in Titusville, Florida; Flint
and Troy, Michigan; Minneapolis, Minnesota; and Corvallis, Oregon.
Additional business units within the Bank & Credit Union Group include
BankLink cash management services (New York, New York); Mortgage Products
Division (Fort Lauderdale, Florida and South Bend, Indiana); Outsourced
Services Division (Stamford, Connecticut); and Fiserv EFT electronic funds
transfer services (Portland, Oregon).
The INDUSTRY PRODUCTS & SERVICES GROUP includes all Fiserv product and
service company businesses marketing to clients within the Fiserv Corporate
Groups, as well as marketing direct to clients within the financial,
healthcare, insurance, retail, telecommunications and related industries.
The Industry Products & Services Group includes Communications Design
marketing services (Sacramento, California); Fiserv Forms & Graphics (Seattle,
Washington); Fiserv Human Resource Information Services (Melville, New York);
ImageSoft Technologies (Maitland, Florida); NEC Card Services (Indianapolis,
Indiana and Houston, Texas); RECOM network consulting (Tampa, Florida); and
Sendero Corporation asset/liability management and decision support systems
(Scottsdale, Arizona; London, England and Singapore).
Fiserv is active in the servicing, administration and record keeping for
Individual Retirement Accounts (IRAs) and other business services through
FIRST TRUST CORPORATION, LINCOLN TRUST COMPANY and THE AFFINITY GROUP, which
are all headquartered in Denver, Colorado. The Affinity Group also does
business in Florida as Retirement Accounts, Inc. Cumulatively, these Fiserv
subsidiaries service approximately 311,000 retirement plans and custodial
accounts with assets valued at more than $18.12 billion.
INFORMATION TECHNOLOGY, INC. (ITI) is a Fiserv subsidiary company based in
Lincoln, Nebraska, with an additional software development center in
Birmingham, Alabama. ITI is a nationwide leader in the design, development,
delivery, installation and support of banking software and related services.
The ITI product serves financial institutions directly through in-house
software licenses, and indirectly through outsourcing providers using ITI
software.
BUSINESS STRATEGY
The market for products and services offered by financial institutions
continues to undergo change. New alternative lending and investment products
are being introduced and implemented by the industry with great frequency; the
distinctions among financial services traditionally offered by savings and
loan associations, banks and credit unions continue to narrow; and financial
institutions diversify and consolidate on an ongoing basis in response to
market pressures, as well as under the auspices of the Federal Deposit
Insurance Corporation ("FDIC") and the National Credit Union Administration
("NCUA").
Although such market changes have led to consolidations which have reduced
the number of financial institutions in the United States, such consolidations
have not resulted in a material reduction of the number of customer accounts
serviced by the financial industry as a whole. New entrants to the once
limited financial services industry have opened new markets for Fiserv
services.
To stay competitive in this changing marketplace, financial institutions are
finding they must aggressively meet the growing needs of their customers for a
broad variety of new products and services that are typically
42
transaction-oriented and fee-based. The growing volume and types of
transactions and accounts have increased the data processing requirements of
these institutions. As a consequence, Fiserv management believes that the
financial services industry has become one of the largest users of data
processing products and services.
Moreover, Fiserv expects that the industry will continue to require
significant commitments of capital and human resources to the information
systems requirements, to require application of more specialized systems, and
to require development, maintenance and enhancement of applications software.
Fiserv believes that economies of scale in data processing operations are
essential to justify the required level of expenditures and commitment of
human resources.
In response to these market dynamics, the means by which financial
institutions obtain data processing services has changed. Many smaller, local
and regional third-party data processors are leaving the business or
consolidating with larger providers. A number of large financial institutions
previously providing third-party processing services for other institutions
have withdrawn from the business to concentrate on their primary, core
businesses. Similarly, an increasing number of financial institutions that
previously developed their own software systems and maintained their own data
processing operations have outsourced their data processing requirements by
licensing their software from a third party or by contracting with third-party
processors to reduce costs and enhance their products and services.
Outsourcing can involve simply the licensing of software, thereby eliminating
the costly technical expertise within the financial institution, or the
utilization of service bureaus, facilities management or resource management
capability. Fiserv provides all of these options to the financial industry.
To capitalize on these industry trends, Fiserv has implemented a strategy of
continuing to develop new products, improving the cost effectiveness of
services provided to clients, aggressively soliciting new clients and making
both opportunistic and strategic acquisitions.
SYSTEMS, SERVICES AND PRODUCTS
Fiserv offers a business-specific solution to satisfy its customer's needs--
from data processing to specialized in-house processing systems to customized
outsourcing.
Fiserv products and services are designed to help clients meet their
ultimate goal: giving their customers service quickly, accurately and
completely. Through their relationship with Fiserv, financial institutions
gain the tools to enhance and expand their customer service: advanced
technology, dependable and responsive support, product and system flexibility,
and value for their money.
As a technology partner, Fiserv offers data processing solutions based on
the financial institution's requirements. This broad base of offerings results
in delivery options including service bureau capabilities; in-house software
systems; and strategic technology alliances including facilities and resource
management services. A host of financial information technology products and
services complement these delivery methods: item processing and imaging
technology services; backroom automation software systems; electronic funds
transfer services; plastic cards and other related card management services;
rate risk management systems; self-directed retirement plan processing;
network installation and integration services; human resources outsourcing;
design and production of business forms and marketing literature; and delivery
and support of leading third-party software and hardware products.
COMPREHENSIVE SERVICE DIMENSION
Fiserv focuses on providing financial data processing systems and related
information management services and products to banks, credit unions, mortgage
banks, savings institutions and other financial intermediaries. This focus
allows Fiserv to concentrate its advanced technology, industry experience,
research and development on creating and supporting solutions uniquely
designed for the financial industry. Based on market surveys of total clients
served, Fiserv is the nation's leading independent data processing provider
for banks and savings
43
institutions; the leading item processing provider for banks and savings
institutions combined; the number two data processing provider for credit
unions; and the number two software and service provider for the mortgage
industry.
Many financial institutions, including banks, credit unions, mortgage banks
and savings institutions, rely on Fiserv data center service bureau solutions
for their information processing needs. These solutions offer clients a choice
of online systems compatible with their existing equipment. Fiserv data
centers focus on the financial institution's needs within its local business
climate, helping to better serve the customer base and provide quality service
at all points of customer contact.
In-house software systems give clients a service delivery method that
enables them to process their own work. These solutions offer clients a broad
array of service capabilities to respond to emerging market opportunities.
Specific to this Fiserv solution is the option of migrating between in-house
or service bureau delivery approaches without new software conversion. The end
result: a business alliance designed to help financial institutions respond to
their customers while enabling each institution to select its preferred
operating environment.
Strategic technology alliances offer financial institutions the option of
full data processing management by Fiserv personnel on-site; or management of
their systems at a Fiserv data center. Facilities Management brings Fiserv
personnel to the client's site, while Resource Management brings the client's
operations to one of the many Fiserv data processing or computer service
centers throughout the United States. Both solutions are designed to meet the
unique requirements of the client by partnering to minimize operating costs
while allowing each client to maintain control of its software applications.
For institutions seeking to expand or enhance their mortgage banking
capabilities, Fiserv offers a specialized line of mortgage products and
services. The benefits of complete PC Windows(TM)-based origination and
secondary marketing solutions and online, real-time loan servicing solutions
are available to help clients effectively meet their mortgage banking needs.
Offering comprehensive item processing (IP) services to more financial
institutions than any other external provider, Fiserv maintains a network of
specialized, regional processing centers in 45 cities. In a field where
efficiencies are gained through volume, Fiserv is well positioned to leverage
its resources and technological expertise for the benefit of IP services
clients nationwide. Other item processing services include: proof of deposit,
inclearing, statement rendering, bulkfile, lockbox, item research, overdraft
processing, qualified returns and return items, cash letter deposit, fine
sorting, account reconcilement and adjustments.
A growing trend in check operations is the use of imaging technology. Fiserv
offers a full range of image integration products and services. Included are
image and document management systems for management, storage and presentation
of check and document images.
Fiserv is among the nation's leading third-party providers of electronic
funds transfer (EFT) services, providing transaction authorization,
comprehensive Automated Teller Machine/Point-of-Sale (ATM/POS) processing and
card management services. Product flexibility and current technology, coupled
with access to all major EFT services networks, helps to keep Fiserv clients
competitive.
As a leading systems integrator, Fiserv creates joint ventures that combine
core competencies in hardware, software, functional application systems,
networks, data management and end-user computing, along with dedicated human
resources. In addition, Fiserv complements its service offerings through
numerous strategic alliances with specialized third-party technology
providers.
As a worldwide provider of financial decision-support systems, Fiserv offers
asset/liability management, data warehousing and performance measurement
solutions. Consulting services help to analyze, enhance and expedite the total
financial management process.
44
Office automation and communication network integration services are
designed to meet specialized information technology needs. Included are
hardware and software installation, maintenance, on-site education and support
for financial institutions.
For cash management services, Fiserv offers a variety of software products
that take into account an institution's particular needs. This portfolio of
cash management solutions includes electronic banking information, reporting
and transaction initiation services.
Fiserv backroom automation systems provide PC-based productivity tools that
deliver the software, service and support necessary to meet the customer
service challenges facing the financial industry. The systems are designed to
streamline backroom operations by reducing time, keystrokes and labor.
A full range of human resource, benefit and payroll information services are
available through Fiserv to help large organizations enhance their personnel
management tasks. Marketing communications and a comprehensive financial
business forms service, including communications needs analysis and complete
project management, provide assistance at all levels of planning and
implementation. Concept, development and design of printed pieces, ranging
from direct mail and collateral material to annual reports, assist clients in
communicating with their customer base.
First Trust Corporation and Lincoln Trust Company, specialized providers of
account processing, administration and trusteeship of self-directed individual
and business retirement plans, are together the largest provider of their kind
in the nation. Based in Denver, Colorado, these Fiserv companies specifically
assist financial representatives and other financial service intermediaries in
managing information through their proprietary data base technology.
SERVICING THE MARKET
The market for Fiserv data processing services and products has specific
needs and requirements, with strong emphasis placed by clients on software
flexibility, product quality, reliability of service, comprehensiveness and
integration of product line, timely introduction of new products and features,
and cost value. Through its multiple product offerings, Fiserv successfully
services these market needs for clients ranging in size from start-ups to some
of the largest institutions worldwide.
Fiserv believes that the position it holds as an independent, growth-
oriented company dedicated to its business is an advantage to its clients.
Fiserv differs from many of the data processing resources currently available
since it is not a regional or local cooperatively owned organization, nor a
data processing subsidiary, an affiliate of a financial institution or a
hardware vendor. Due to the economies of scale gained through its broad market
presence, Fiserv offers clients a selection of data processing solutions
designed to meet the specific needs of financial institutions.
Fiserv believes this independence and primary focus on the financial
industry helps its business development and related Client Service and Product
Support teams remain responsive to the data processing needs of its market,
now and for the future.
"The Client Comes First" is one of Fiserv's founding principles. It's a
belief backed by a dedication to providing ongoing client service and
support--no matter the institution size. The Fiserv Client Support and Account
Management staff is responsible for the day-to-day interface with the
operations of clients.
Fiserv's commitment of substantial resources to training and technical
support helps keep Fiserv clients first. Fiserv conducts the majority of its
new and ongoing client training in its data centers, where Fiserv maintains
fully equipped demonstration and training facilities containing equipment used
in the delivery of Fiserv services. Fiserv also provides local and on-site
training services.
45
PRODUCT DEVELOPMENT
In order to meet the changing data processing needs of the financial
institutions served by Fiserv, Fiserv continually develops, maintains and
enhances its systems. Resources applied to product development and maintenance
are believed to be approximately 8% to 10% of Fiserv revenues, about half of
which is dedicated to software development.
Unique to Fiserv, its network of development and data processing centers
applies the shared expertise of multiple Fiserv teams to design, develop and
maintain specialized processing systems around the leading technology
platforms. The applications of its account processing systems meet the
preferences and diverse requirements of the various international, national,
regional or local market-specific financial service environments of Fiserv's
many clients.
Though all Fiserv centers rely on Fiserv's nationally developed and
supported software, each center has specialized capabilities that enable them
to offer system application features and functions unique to their client
base. Where the client's requirements warrant, Fiserv purchases software
programs from third parties which are interfaced with existing Fiserv systems.
In developing its products, Fiserv stresses responsiveness to the needs of its
clients through close client contact.
Fiserv provides a dedicated system designed, developed, maintained and
enhanced according to each client's goals for service quality, business
development, asset/liability mix, local-market positioning and other user-
defined parameters.
COMPETITION
The market for data processing services to banks, credit unions and savings
institutions is highly competitive. Fiserv's principal competitors include
internal data processing departments, data processing affiliates of financial
institutions or large computer hardware manufacturers, independent computer
service firms and processing centers owned and operated as user cooperatives.
Fiserv competitors include EDS, M&I, Bisys, ALLTEL, ISSC (IBM), Symitar and
various regional firms. Certain of these competitors possess substantially
greater financial, sales and marketing resources than Fiserv. Competition from
in-house data processing and software departments is intensified by the
efforts of computer hardware vendors who encourage the growth of internal data
centers.
Competitive factors for processing services include product quality,
reliability of service, comprehensiveness and integration of product line,
timely introduction of new products and features, and price. Fiserv believes
that it competes favorably in each of these categories. In addition, Fiserv
believes that its position as an independent vendor, rather than as a
cooperative, an affiliate of a financial institution or a hardware vendor, is
a competitive advantage.
First Trust and Lincoln Trust compete with a number of large and small
providers of retirement plan administration services.
GOVERNMENT REGULATION
Fiserv's data processing subsidiaries are not themselves directly subject to
federal or state regulations specifically applicable to financial institutions
such as banks, thrifts and credit unions. As a provider of services to these
entities, however, the data processing operations are observed from time to
time by the Federal Deposit Insurance Corporation, the National Credit Union
Administration, the Office of Thrift Supervision, the Office of the
Comptroller of the Currency and various state regulatory authorities. These
regulators make certain recommendations to Fiserv regarding various aspects of
its data processing operations. Such recommendations are generally implemented
by Fiserv. In addition, Fiserv's operations are reviewed annually by an
independent auditor to provide required internal control evaluations for its
clients' auditors and regulators.
As trust companies under Colorado law, First Trust and Lincoln Trust are
subject to the regulations of the Colorado Division of Banking. First Trust
and Lincoln Trust historically have complied with such regulations and
although no assurance can be given, Fiserv believes First Trust and Lincoln
Trust will continue to be able to
46
comply with such regulations. First Trust and Lincoln Trust both provide
Federal Deposit Insurance Corporation coverage of their customer deposits.
EMPLOYEES
Fiserv employs 8,590 specialists throughout the United States and worldwide
in its information management centers and related product and service
companies. This service support network includes employees with backgrounds in
computer science and the financial industry, often complemented by management
and other direct experience in banks, credit unions, mortgage firms, savings
and other financial institution business environments.
Fiserv employees provide expertise in sales and marketing; account
management and client serogramming, software development, modification and
maintenance; conversions and client training; and related support services.
Fiserv employees are not represented by a union, and there have been no work
stoppages, strikes or organizational attempts. The service nature of Fiserv
business makes its employees an important corporate asset, and while the
market for qualified personnel is competitive, Fiserv does not experience
difficulty with hiring or retaining its staff of top industry professionals.
In assessing companies to acquire, the quality and stability of the
prospective company's staff are emphasized.
Management attributes its ability to attract and keep quality employees to,
among other things, Fiserv's growth and dedication to state-of-the-art
software development tools and hardware technologies.
PROPERTIES
Fiserv currently operates full-service data centers, software system
development centers and item processing and back-office support centers in 75
cities (60 in the United States): Birmingham, Alabama; Phoenix and Scottsdale,
Arizona; Little Rock, Arkansas; Alameda, Covina, Fresno, Fullerton, Los
Angeles, Sacramento, San Diego, San Leandro, Van Nuys and Walnut, California;
Denver, Colorado; New Haven and Stamford, Connecticut; Fort Lauderdale,
Jacksonville, Maitland, Miami, Orlando, Tampa and Titusville, Florida; Atlanta
and Macon, Georgia; Honolulu, Hawaii; Arlington Heights, Chicago, Marion and
Pontiac, Illinois; Indianapolis and South Bend, Indiana; Des Moines, Iowa;
Bowling Green, Kentucky; New Orleans, Louisiana; Boston, Massachusetts; Flint
and Troy, Michigan; Mendota Heights and Minneapolis, Minnesota; Lincoln,
Nebraska; Piscataway, New Jersey; Lake Success, Melville and New York, New
York; Cleveland, Ohio; Oklahoma City, Oklahoma; Corvallis and Portland,
Oregon; Philadelphia and Pittsburgh, Pennsylvania; Amarillo (FM), Beaumont,
Dallas, Houston and San Antonio, Texas; Seattle, Washington; and Brookfield
and Milwaukee, Wisconsin. International business centers are located in
London, England; Singapore; and Burlington, Calgary, Edmonton, Halifax,
London, Montreal, Ottawa, Regina, St. Catherines, Toronto, Vancouver, Victoria
and Winnipeg, Canada.
Fiserv owns facilities in Brookfield, Corvallis, Fresno, Hartford and
Lincoln; all other buildings in which centers are located are subject to
leases expiring through 1998 and beyond. Fiserv owns or leases 129 mainframe
computers (Data General, Digital, Hewlett Packard, IBM, NCR and Unisys). In
addition, Fiserv maintains its own national data communication network
consisting of communications processors and leased lines.
Fiserv believes its facilities and equipment are generally well maintained
and are in good operating condition. Fiserv believes that the computer
equipment it owns and its various facilities are adequate for its present and
foreseeable business. Fiserv periodically upgrades its mainframe capability as
multiple sites to provide processing backup in the event of a disaster and
maintains duplicate tapes of data collected and software used in its business
in locations away from Fiserv's facilities.
Fiserv regards its software as proprietary and utilizes a combination of
trade secrecy law, internal security practices and employee non-disclosure
agreements for protection. Fiserv has not patented or registered the
copyrights on its software. Fiserv believes that legal protection of its
software, while important, is less significant than the knowledge and
experience of Fiserv's management and personnel and their ability to develop,
enhance and market new products and services. Fiserv believes that it holds
all proprietary rights necessary for the conduct of its business.
47
BHC SELECTED FINANCIAL DATA
The following table sets forth selected consolidated financial data of BHC.
The income statement data in the table for the three years ended December 31,
1996 and the balance sheet data of BHC as of December 31, 1995 and 1996 have
been derived from BHC's consolidated financial statements incorporated by
reference herein which have been audited by Coopers & Lybrand L.L.P.,
independent auditors. The balance sheet data as of December 31, 1992, 1993 and
1994 and the related income statement data for the years ended December 31,
1992 and 1993 have been derived from BHC's consolidated financial statements
which are not incorporated by reference herein.
YEAR ENDED DECEMBER 31,
---------------------------------------
1992 1993 1994 1995 1996
------- ------- ------- ------- -------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
INCOME STATEMENT DATA:
Revenues:
Processing and support service
fees............................... $30,684 $35,572 $37,164 $42,497 $50,561
Margin interest..................... 12,064 14,937 20,218 25,583 28,301
Other interest...................... 1,636 2,593 2,978 3,769 4,921
Commissions......................... 5,102 5,360 4,585 6,555 9,189
Other............................... 1,545 1,966 2,431 2,950 4,845
------- ------- ------- ------- -------
Total revenues (1).................. 51,031 60,428 67,376 81,354 97,817
Interest expense (2)................ 7,676 8,295 11,918 15,630 16,636
------- ------- ------- ------- -------
Net revenues........................ 43,355 52,133 55,458 65,724 81,181
------- ------- ------- ------- -------
Expenses, excluding interest:
Employees' compensation and
benefits........................... 13,927 15,895 17,341 20,335 23,406
Floor brokerage and clearing........ 4,164 4,633 4,706 5,755 6,092
Communications...................... 1,381 1,637 1,946 2,844 3,772
Occupancy and equipment............. 4,421 5,154 6,094 5,979 6,815
Other............................... 6,156 7,159 8,618 8,426 11,183
------- ------- ------- ------- -------
Total expenses, excluding interest
expense............................ 30,049 34,478 38,705 43,339 51,268
------- ------- ------- ------- -------
Income before income taxes............ 13,306 17,655 16,753 22,385 29,913
Provision for income taxes............ 4,678 6,643 6,129 8,448 11,889
------- ------- ------- ------- -------
Net income............................ $ 8,628 $11,012 $10,624 $13,937 $18,024
======= ======= ======= ======= =======
Earnings per share, fully diluted..... $ 1.63 $ 1.60 $ 1.40 $ 1.94 $ 2.69
======= ======= ======= ======= =======
Weighted average shares outstanding
fully diluted........................ 5,563 7,046 7,581 7,193 6,688
- --------
(1) Includes related party revenues of $21,403, $12,100, $9,563, $16,122, and
$12,862 for 1992, 1993, 1994, 1995 and 1996, respectively.
(2) Includes related party expenses of $1,765, $2,092, $2,625, $5,747, and
$7,676 for 1992, 1993, 1994, 1995 and 1996, respectively.
YEAR ENDED DECEMBER 31,
--------------------------------------------
1992 1993 1994 1995 1996
-------- -------- -------- -------- --------
(IN THOUSANDS)
BALANCE SHEET DATA:
Total assets.................... $393,572 $490,194 $551,921 $634,002 $785,299
Long-term debt and other long-
term obligations............... $ 19,211 $ 2,207 $ 583 -- --
Stockholders' equity............ $ 26,639 $ 68,525 $ 75,101 $ 85,308 $ 93,467
48
BHC MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
GENERAL
BHC's principal source of revenue is derived from providing processing and
support services to securities brokerage affiliates of banks, other financial
institutions and broker-dealers. Net revenues principally include processing
and support fees, margin interest, commissions and other miscellaneous fees
which are ancillary to customer securities transactions, less interest
expense.
The major non-interest expenses incurred by BHC relate to employees'
compensation and benefits and other direct costs of processing and support
services, such as floor brokerage and clearing charges, occupancy and
equipment costs and other operating expenses.
Although BHC's business cannot be characterized as seasonal, retail
brokerage activity is typically, but not always, slower in the summer months
of June, July and August. Reduced transaction volume generally results in
reduced levels of processing and support service fees and commission revenues.
Variations in transaction volume may cause BHC's operating results to
fluctuate significantly on a quarter-to-quarter basis.
During 1996 and 1995, business conditions related to the provision of
processing and support services to the securities brokerage affiliates of
banks and other financial institutions were favorably impacted by stable short
term interest rates which helped increase the activity in both the equity and
mutual fund markets.
The financial services industry is currently undergoing increased
consolidation. If any of the banks or other financial institutions processing
brokerage transactions through BHC Securities were to consolidate, such
consolidation might result in an increase, decrease or no change in the use of
BHC Securities' processing and support services depending on whether and the
extent to which the surviving consolidated entity continues its relationship
with BHC Securities. From time to time, BHC Securities' Clients may also
review the possibility of internalizing their securities brokerage processing
functions.
BHC Securities attempts to mitigate the risk of loss by entering into longer
term contracts with larger Clients, providing superior products and services
at "cost effective" prices and developing software and systems for Clients
that meet their specific needs. BHC Securities markets to prospective Clients
on a continuing basis and added ten new Clients in 1996. BHC Securities lost
three clients in 1996.
While BHC Securities recently expanded its marketing plan to target broker-
dealers and investment advisors not affiliated with financial institutions, it
continues to market to large financial institutions and a significant portion
of its revenues are dependent on approximately fifteen large financial
institutions. As previously disclosed in prior filings with the Commission,
three Clients of BHC Securities have notified BHC Securities of their
intentions to internalize their securities processing brokerage function.
These Clients accounted for 31% of BHC Securities' 1996 total revenues. It is
anticipated that Norwest Investment Services, Inc. will terminate its clearing
agreement with BHC Securities in the third quarter of 1997, USAA Brokerage
Services in the fourth quarter of 1997 and Citicorp Investment Services, Inc.
at the end of the second quarter of 1998. While these events will have an
adverse financial impact on BHC, the amount can not be quantified in advance
due to the variable nature of the securities processing business. BHC
Securities will continue to intensify its effort to broaden its client base
and markets and to diversify its security processing business. It is
anticipated that over time, the loss of these clients will be replaced by new
clients and the growth of existing clients.
IMPORTANT FACTORS REGARDING FORWARD-LOOKING STATEMENTS
Statements regarding BHC's expectations as to its future operations and
financial condition and certain other information presented herein constitute
forward looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. Although BHC believes that its expectations are
based on reasonable assumptions within the bounds of its knowledge of its
business and operations, there can be no assurance that actual results
49
will not differ materially from its expectations. Factors which could cause
actual results to differ from expectations include a general downturn in the
economy or the stock markets and the related transaction activity, substantial
changes in interest rates, the gain or loss of significant customers,
unforeseen new competition, changes in government policy or regulation and
unforeseen costs and other effects related to legal proceedings.
RESULTS OF OPERATIONS
BHC's revenues are directly affected by the income derived from its
processing and support services. Such revenues are affected by both the
transaction volume of accounts and the level of, and interest rate charged on,
customer margin debit balances. The information in the table below should be
considered when reading the discussion and analysis of operating results that
follow the table.
PERCENTAGE CHANGE
FOR THE YEAR ENDED
DECEMBER 31,
-----------------------
YEAR ENDED DECEMBER 31, 1995 1996
------------------------- COMPARED COMPARED
1994 1995 1996 TO 1994 TO 1995
------- ------- ------- --------- ---------
Total transactions (in
thousands)............. 1,383 1,665 2,239 20% 34%
Daily average
transactions
processed.............. 5,487 6,606 8,813 20% 33%
Number of active
accounts at end of
period (in
thousands)(1).......... 916 1,075 1,125 17% 5%
Average margin debit
balances (in
millions).............. $ 316 $ 322 $ 379 2% 18%
Average broker call
rate................... 5.94% 7.58% 7.03%
- --------
(1) Active accounts are generally those that have positions or have had
brokerage processing activity during the previous 18 months.
1996 COMPARED WITH 1995
Net revenues for the year ended December 31, 1996 reached $81.2 million
which was $15.5 million, or 24%, greater than the $65.7 million generated in
the year ended December 31, 1995. The increases were the result of increases
in processing and support service fees, net interest income, commissions and
other income.
Processing and support service fees increased to $50.6 million for 1996 from
$42.5 million in 1995, a 19% increase. The increase was due to increased
transaction volume of 34% for the period. The financial results of 1996
reflect the loss of three Clients during the year which was offset by
transactions from new Clients signed late in 1995 and throughout 1996. The
average revenue per ticket declined by $2.94, or 12%, in 1996 when compared to
1995. Generally, in periods where daily transaction volumes are increasing,
revenue will increase, while processing and support service revenue per ticket
will decline. This is due to BHC Securities' volume discount program which
rewards Clients for high transaction volumes by reducing the charge per
transaction when various volume levels are achieved. In addition, BHC faces
pressure on profit margins as Clients become larger due to the threat of
Clients internalizing their brokerage processing and support functions and due
to general pricing pressure from increased market competition.
Net interest income (margin interest income and other interest income less
interest expense) increased to $16.6 million in 1996 from $ 13.7 million in
1995, a 21% increase. The increase was due to increases in margin and other
interest bearing assets. For 1996, margin interest increased to $28.3 million
from $25.6 million in 1995, an 11% increase. Average margin balances
outstanding increased $57 million, or 18%, for 1996 when compared to the same
1995 period. Offsetting these increases were decreases in the average broker
call rate of 55 basis points for 1996 when compared to the 1995 period. Other
interest income increased to $4.9 million in 1996 from $3.8 million in 1995, a
31% increase, due to an increase in securities borrowed and other interest
bearing assets. A decrease in the average federal funds rate of approximately
50 basis points for 1996 when compared to the same periods in the prior year,
led to a decrease in BHC's rate for borrowing. The decline in rates was offset
by the increased funding needed for the growth in interest bearing assets,
resulting in a slight increase in interest expense.
50
Commissions on retail sales from TradeStar increased to $9.2 million in 1996
from $6.6 million in 1995, an increase of 40%. This was the result of
transaction volume which was up 37% in 1996 when compared to 1995. Customer
accounts purchased in the third quarter of 1995 represented 70% of the
increase and the remainder of the increase was due to growth in retail
activity.
In 1996, other income increased to $4.8 million from $2.9 million in 1995, a
64% increase. The increases were primarily due to increased quote service fees
from netVest and Banquote and income from investments.
Expenses, excluding interest, increased by 18% in 1996 compared to the same
period in 1995. The increases were primarily related to increases in
employees' compensation and benefits, floor brokerage and clearing,
communication costs, occupancy and equipment, and other expenses.
Employees' compensation and benefits increased to $23.4 million in 1996 from
$20.4 million in 1995, a 15% increase. The increase was primarily due to the
effect of the staff additions related to the acquisition by BHC of netVest and
the acquisition by TradeStar of PNC Securities Corp.'s Trade$aver, a discount
broker service for correspondent banks and individuals, in the third quarter
of 1995 and normal and recurring salary adjustments. Average full time
equivalents increased by 8% in 1996 when compared to 1995, and recurring
salary adjustments increased an average of 4% from 1996 to 1995.
The increase in floor brokerage and clearing of $337,000, or 6%, was a
direct result of the increase in transactions processed. Floor brokerage and
clearing represents 12% and 14%, respectively, of processing and support fees
for 1996 and 1995, respectively.
Occupancy and equipment costs increased to $6.8 million in 1996 from $6.0
million in 1995, a 14% increase. This was due in part to increased variable
costs related to the increase in mutual fund processing and increased rent as
a result of the business units acquired in the third quarter of 1995.
Communications expenses increased to $3.8 million in 1996 from $2.8 million
in 1995, a 33% increase. The increase was due in part to the costs associated
with the PC and telephone inquiry, trading and quote services offered through
netVest, which was acquired early in the third quarter of 1995, and increased
costs associated with the Banquote product.
Other operating expenses increased to $11.2 million in 1996 from $8.4
million in 1995, a 33% increase. The primary reason for the increases are
related to systems development initiatives for order entry products that will
continue to be funded through the first quarter of 1997, as well as to travel
and promotion costs and amortization of goodwill on the 1995 acquisitions.
The provision for income taxes increased to $11.9 million and the effective
tax rate was 40% in 1996 compared to a 38% effective tax rate in 1995. The
increase in the effective tax rate was due to a reduction in the percentage of
income derived from state tax-exempt income.
On January 21, 1994, BHC Securities received notice that a purported holder
of a brokerage account with a BHC Securities' Client filed a complaint in the
Supreme Court of the State of New York which alleges that BHC Securities
received, in violation of New York statutory and common law, cash payments
from market makers in certain securities (referred to as payment for order
flow) in return for BHC Securities executing customer orders with such market
makers. In the complaint, the plaintiff seeks injunctive relief and damages, a
return of cash payments for order flow, in addition to clearing and execution
fees earned by BHC Securities from January 1, 1990, certification of this
matter as a class action, punitive damages, costs and attorneys' fees in an
unspecified amount. Payment for order flow is common practice within the
securities industry. BHC Securities removed this matter to the United States
District Court for the Southern District of New York, and the federal court,
on December 18, 1995, dismissed the complaint for failure to state a claim
upon which relief can be granted. The plaintiff appealed the dismissal, and on
January 17, 1997 the United States Court of Appeals for the Second Circuit
vacated the final judgment of the Lower Court on jurisdictional grounds and
remanded with instructions to remand the action to State Court.
51
In the opinion of management, the ultimate liability, if any, resulting from
this matter will have no material effect on BHC's consolidated financial
position. The materiality of this matter on BHC's future operating results
depends on the level of future results of operations, as well as on the timing
and amount of the ultimate outcome.
1995 COMPARED WITH 1994
In 1995, net revenues increased $10.3 million, or 19%, over 1994. The higher
net revenues were the result of increases in processing and support service
fees, commissions, net interest and other income. Processing and support
service fees increased $5.3 million, or 14%, due to a 20% increase in
transactions processed. In periods when transaction volumes increase,
processing and support service revenue will increase, while processing and
support service revenue per ticket will decline. This is due to BHC
Securities' volume discount program which rewards Clients for high transaction
volumes by reducing the charge per transaction when certain volume levels are
achieved. As a result of an increase in transactions processed in 1995,
average processing and support service revenues per ticket decreased $1.35, or
5%.
Net interest income of $13.8 million in 1995 increased $2.5 million, or 22%,
from the 1994 level of $11.3 million. The growth was principally attributable
to an increase in margin interest income of $5.3 million, or 27%, which was a
result of a $6 million, or 2%, growth in average margin debit balances. This
increase was despite the loss of a single margin account of $30 million in the
second quarter of 1995 as a result of management's determination that the
account was unduly concentrated. The positive effect of the increased average
margin balances was further enhanced by the higher interest rate environment
experienced in 1995. The year-to-year increase in the average broker call rate
was 164 basis points. Interest expense in 1995 increased $3.7 million, or 31%.
Increased funding needed for the growth in average margin debit balances and
an increase in the federal funds rate of approximately 170 basis points
resulted in the increase in interest expense.
Commissions on retail trades from customers of TradeStar increased $2.0
million, or 43%, in 1995. This was a result of a 57% increase in transactions
processed. Customer accounts purchased late in the third quarter of 1995
represented 8% of the increase.
In 1995, other income increased $519,000, or 21%. PC and telephone inquiry,
trading, and quote services from netVest and other fees ancillary to the
processing of securities transactions accounted for the increase.
Expenses, excluding interest, increased by 12% in 1995 primarily related to
increases in employees' compensation and benefits, floor brokerage and
clearing and communications costs.
Employees' compensation and benefits increased $3 million, or 17%, in 1995.
Compensation expenses in 1995 include the impact of approximately $450,000, or
3%, related to business units acquired in the third quarter of 1995. An
increase of $550,000, or 3%, in officers incentive bonuses, which are tied to
the company's earnings, was also included in 1995. After adjusting for the
number of employees related to business units acquired, average full time
employees increased 7% while normal and recurring salary adjustments increased
an average of 6%.
The increase in floor brokerage and clearing of $1 million, or 22%, was a
direct result of the 20% increase in transactions processed. Floor brokerage
and clearing represents 14% and 13%, respectively, of processing and support
service fees for 1995 and 1994, respectively.
Communications, occupancy and equipment costs increased $783,000, or 10%, in
1995. The increase in cost was due to the addition of redundant data and voice
communication lines, increased quote costs related to the Banquote product and
costs associated with the PC and telephone inquiry, trading and quote services
offered through netVest.
Other operating expenses decreased by $192,000, or 2%, in 1995. The primary
reason for the decrease was lower local taxes and product maintenance costs,
offset by higher state franchise taxes, promotional expenses and consulting
programming fees in connection with enhancements to the brokerage processing
system.
52
The provision for income taxes increased $2.3 million in 1995 due primarily
to higher pre-tax income as compared to 1994. The effective tax rate was 37.7%
in 1995 and 36.6% in 1994. The increase in the effective tax rate is due to a
smaller portion of income derived from state tax-exempt income in 1995.
LIQUIDITY AND CAPITAL RESOURCES
At December 31, 1996, 96% of assets consisted of cash, assets readily
convertible into cash or assets collateralized by marketable securities.
Stockholders' equity was $93.5 million at December 31, 1996, up $8.2 million,
or 10%, from December 31, 1995, which was due to earnings offset by dividends
and the repurchase of $9.0 million of BHC Common Stock.
BHC has uncommitted credit arrangements totaling $215 million with several
banks. At December 31, 1996, BHC had outstanding borrowings under these
arrangements of $33.2 million. These demand loans, which are used to finance
receivables in customers' margin accounts, bear interest at the respective
bank's overnight borrowing rate and are collateralized by securities held in
customers' margin accounts and cash equivalents. In the opinion of management,
BHC's existing credit arrangements are adequate to meet BHC's short-term
operating capital needs.
On January 15, 1997, BHC's Board of Directors declared a $.03 per share
dividend payable February 14, 1997 to stockholders of record on February 1,
1997, resulting in a payment of approximately $190,000.
BHC Securities, TradeStar and BHCM, Inc. ("BHCM") are subject to the
requirements of the Commission. BHC Securities is subject to the requirements
of the New York Stock Exchange, Inc., and TradeStar and BHCM are subject to
the requirements of the National Association of Securities Dealers, Inc.,
relating to liquidity, minimum net capital levels and the use of customer
funds and securities. BHC Securities, BHCM and, since BHC acquired it,
TradeStar have always operated in excess of the applicable minimum net capital
requirements. In the opinion of management, BHC's existing capital and lines
of credit are sufficient to meet the operating capital needs for the
foreseeable future in light of known and reasonably estimated trends.
OTHER
BHC licenses its software under a long term licensing agreement. The
software provider is responsible for maintenance of the system including
modifications to enable uninterrupted usage after the year 2000. The software
provider has issued a formal plan for compliance with year 2000 system
enhancements and it is not anticipated that this will result in a material
financial undertaking by BHC to complete.
EFFECTS OF INFLATION
Because BHC's assets are, to a large extent, liquid in nature, they are not
significantly affected by inflation. However, inflation may result in
increases in BHC's expenses, such as employees' compensation and benefits,
occupancy and equipment costs and communications expense, which may not be
readily recoverable in the price of services offered. To the extent inflation
results in rising interest rates, this may adversely affect transaction
volume, which, in turn, may adversely affect BHC's results of operations.
BUSINESS AND PROPERTIES OF BHC
BHC, through its principal business unit, BHC Securities, is a leading
national third-party provider of integrated processing and support services to
Clients. During 1996, BHC Securities processed, on behalf of its Clients,
approximately 2.2 million transactions for over 1.1 million retail brokerage
accounts. To enable its Clients to outsource key securities processing
functions, BHC Securities provides cost effective Processing and Support
Services.
BHC Securities, which is headquartered in Philadelphia, Pennsylvania, was
organized in 1983 primarily for the purpose of providing Processing and
Support Services to affiliates of BHC's founding stockholders, all of
53
which were banks or bank holding companies. Clients that have an employee or
officer serving as a director of BHC are considered related parties for
financial reporting purposes and in 1996 accounted for approximately 13% of
BHC's total revenue.
Through TradeStar, a regional brokerage firm headquartered in Houston,
Texas, BHC also offers retail brokerage services at discount commission rates.
BHC also offers mutual funds, annuities and other life insurance products as
a third party marketer to banks and other financial institutions through its
subsidiary BHCM, a licensed insurance agency and registered broker-dealer
headquartered in Houston, Texas. BHCM also acts as an extension of TradeStar
in marketing brokerage services to community banks. F.T. Agency, Inc. ("FT")
and Tower Agency, Inc. ("Tower"), subsidiaries of BHCM, are licensed insurance
agencies organized to facilitate the sale of annuities and other life
insurance products offered to customers of Fifth Third Securities, Inc. and
Provident Securities and Investments, Inc., respectively. Fifth Third
Securities, Inc. is an affiliate of a Stockholder of BHC.
BHC Securities, TradeStar and BHCM are members of the National Association
of Securities Dealers Inc. ("NASD"), Securities Investor Protection
Corporation ("SIPC") and other regulatory and trade organizations. BHC
Securities is a member firm, and has employees located on the trading floors,
of the New York Stock Exchange, Inc. ("NYSE") and the Philadelphia Stock
Exchange, Inc., is a member firm of the American Stock Exchange, Inc. and the
Chicago Stock Exchange, Inc. and is a licensed broker-dealer in all 50 states
of the United States, the District of Columbia and the Commonwealth of Puerto
Rico.
NATURE OF BHC'S BUSINESSES
BHC's businesses, by their nature, are subject to various risks, including
substantial fluctuations in volume levels of securities transactions
processed, losses from customer defaults, litigation and employee misconduct.
Processing and support service fees and commission revenues are directly
related to transaction volumes. In periods of low volume, profitability is
adversely affected because certain expenses consisting primarily of salaries,
computer hardware and software costs and occupancy expenses remain relatively
fixed. In 1996, such expenses were approximately $35,254,000, or approximately
52% of total expenses including interest expense. Variations in transaction
volume may cause BHC's operating results to fluctuate significantly on a
quarterly basis.
Except for margin debit balances carried by BHC Securities on behalf of
TradeStar, which as of December 31, 1996 totaled $52,290,000, the risk of loss
from customer defaults is generally contractually allocated to the Client for
which BHC Securities is acting pursuant to a Clearing Agreement between BHC
Securities and the Client (the "Clearing Agreement"). There can be no
assurance that in all instances BHC Securities will recover the full amount or
any part of such loss. BHC Securities would bear losses arising out of
customer defaults to the extent they could not be collected from the Client
and/or the customer.
BHC Securities, TradeStar and BHCM, like all firms involved in the
securities business, are subject to litigation from time to time in connection
with their activities.
PROCESSING AND SUPPORT SERVICES
BHC Securities provides a comprehensive range of Processing and Support
Services that support virtually all aspects of a bank or other financial
institution's retail brokerage operation. This "Single Source" solution is
provided through an on-line, real-time computerized brokerage system that
integrates a sophisticated order-matching and accounting system. This system
enables BHC Securities to execute and clear a high volume of transactions and
provide a number of ancillary account administration services, including all
transaction accounting, the extension and maintenance of credit to the
Client's customers and the daily administration and processing of cash sweeps
to money market funds and deposit accounts.
54
Transaction Execution and Clearing. The execution process begins when the
Client accepts its customers' order for the purchase or sale of securities and
electronically transmits the order to BHC Securities via BHC Securities'
computer network for processing. BHC Securities, in turn, routes the order to
the appropriate market for execution. Approximately 80% of all transactions
executed by BHC Securities are processed automatically through sophisticated
order-matching systems which route the order to the appropriate markets for
execution. The balance of the transactions are executed by BHC Securities
personnel. In the execution of some listed and over-the-counter transactions,
BHC Securities receives payment for the order flow. At the time of execution,
a printed confirmation containing the details of each transaction is
automatically generated and printed at the Client's location and the
transaction is recorded by BHC Securities in the customer's account. This
permits the Client to report the impact of the transaction on the account to
the customer promptly after receipt of the order. Customer accounts are
covered by SIPC for up to $500,000 ($100,000 in cash) and are provided with
additional protection by a domestic insurance carrier of $24,500,000 per
account.
BHC Securities clears all of the transactions which it executes for its
Clients, as well as certain transactions which are executed by the Clients. A
transaction is cleared by taking possession of the customer's cash, if
securities are being purchased, or by taking possession of the certificates,
if any, if securities are being sold. BHC Securities delivers the cash or
certificates to the broker for the counterparty to the transaction generally
through a clearing corporation. Cash or certificates received by BHC
Securities for an account are either held in the account or delivered to the
customer. BHC Securities maintains customer securities at several regulatory-
approved depositories.
Through BHC Trading Corp., a specialist unit of the Philadelphia Stock
Exchange, BHC acts as a market maker in approximately 51 exchange listed
companies.
Net Interest. BHC derives interest income primarily from customer margin
loans and securities lending activities.
Margin Loans. Transactions in securities are effected on either a cash or
margin basis. In margin transactions, BHC Securities extends credit for a
portion of the purchase price, which is collateralized by securities and cash
in the customer's account, and receives income from interest charged on such
extension of credit. The amount of the loan is subject to the initial margin
requirements included in Regulation T of the Federal Reserve Board and the
NYSE margin requirements. BHC Securities' internal policies generally call for
stricter maintenance requirements than the NYSE requirements. BHC Securities
is subject to the risk of a market decline that could reduce the value of the
collateral held in an account below the customer's indebtedness before the
collateral could be sold. Margin agreements with account holders permit BHC
Securities to liquidate securities in an account with or without prior notice
in the event of an insufficient amount of margin collateral. Despite these
agreements, BHC Securities may be unable to liquidate an account holder's
securities for various reasons, including the illiquidity of pledged
securities, an undue concentration of certain securities pledged or a trading
halt of pledged securities.
Interest is charged to customer accounts on the amount borrowed to finance
margin transactions at a rate determined by BHC Securities. At December 31,
1996, margin receivables were approximately $461,501,000.
The primary source of funds to finance margin account balances has been the
free credit balances in customer accounts. As of December 31, 1996, customers'
credit balances in accounts available to BHC Securities were approximately
$318,300,000. BHC Securities pays interest to certain accounts and pays a fee
to the introducing Clients on most of the funds at a rate determined
periodically by BHC Securities which is below the broker call rate.
Stock Loan Activities. The securities borrowing and lending activities of
BHC Securities involve (i) borrowing securities to cover short sales and to
complete transactions in which customers have failed to deliver securities by
the settlement date; (ii) lending securities to other brokers and dealers for
similar purposes; and (iii) borrowing a security from one broker-dealer, at an
agreed upon rate, and then simultaneously lending it
55
out to another broker-dealer at a lower rate. When lending securities, BHC
Securities receives cash and generally pays a rebate (based on the amount of
cash deposited) to the counterparty to the transaction. BHC Securities uses
the cash received as collateral for securities it loans as a source of funding
for margin debit balances. BHC Securities is either an agent or principal in
these securities borrowing and lending transactions and may become liable for
losses in the event of a failure of any other party to honor its contractual
obligations.
BHC Securities makes available a security lending service to financial
institutions which gives them the ability to participate in the securities
lending market. This service allows the financial institution to enhance the
yields of the portfolios they manage without the expense of developing and
maintaining an in-house program. BHC Securities receives a fee for these
services based on the amount of securities out on loan.
COMPLEMENTARY PRODUCTS AND SERVICES
In addition to traditional Processing and Support Services, BHC Securities
actively seeks to expand its array of complementary outsourcing services to
new and existing Clients. Complementary products include:
Processing for Bank and Capital Markets Departments. BHC Securities
offers a product that delivers an integrated brokerage and accounting
system to bank capital market departments typically involved in trading
U.S. Government and municipal securities and bankers acceptances. This
product enables bank capital markets departments to execute and account for
trades, while at the same time allowing BHC Securities to clear and settle
the transactions and carry the accounts of the departments' customers.
Mutual Fund Processing. BHC Securities makes available to its Clients
over 4,000 mutual funds, which include approximately (i) 800 no load funds,
28 of which are Clients' proprietary funds; (ii) approximately 400 no
transaction fee mutual funds; and (iii) approximately 3,200 load funds of
which 247 are Clients' proprietary funds. The proprietary Mutual Fund
Profile and Order Entry Systems of BHC Securities provide extensive
marketing and operational support which aids the Clients' efforts to market
mutual funds. In addition, the prospectus mailing program of BHC Securities
allows Clients to outsource their prospectus mailing requirements in
connection with mutual fund sales.
Retirement Accounts. BHC Securities makes available a variety of
retirement plan products including self-directed retirement plans
("SDIRA"), Keoghs, SEPs, SIMPLE Individual Retirement Accounts and 401(k)
plans. BHC Securities' retirement products are designed to integrate an
individual's retirement account with a brokerage account, with BHC
Securities providing all associated transaction accounting, as well as all
required tax reporting. BHC Securities' retirement products allow Clients
affiliated with a bank to have the bank act as trustee and allow Clients to
select proprietary money market and mutual funds and proprietary
certificates of deposit as investment options.
Equity Dividend Reinvestment. The equity dividend reinvestment program of
BHC Securities allows customers to direct cash dividend payments of $10.00
or more to purchase additional full and fractional shares of the same
security. Virtually all listed equity securities (common shares) are
available. Full and fractional shares are tracked by our system and
displayed in the customer's brokerage account on-line and are printed on
the customer statement.
BHC Broker's Advantage. BHC Broker's Advantage is Windows-based contact
management and sales system designed for full service brokers to sell and
service customers effectively and efficiently. With this product, a
registered representative can manage appointments, create customer
profiles, open accounts, print applications and submit orders, all from a
laptop computer. This product also provides for the ability to manage the
administrative and compliance sides of the sales process more efficiently
and consistently. Approved product lists, marketing communications,
applications and other forms can be created and controlled through the
system's administrative functions.
BHC Broker's Vision. BHC Broker's Vision is a graphical user system that
was designed with the discount work force in mind. BHC Broker's Vision
displays multiple mainframe brokerage functions on one screen in a Windows-
based format.
56
Investor's Workbench. Developed by BHC's subsidiary, netVest, Investor's
Workbench is an on-line trading and portfolio maintenance system designed
for customer direct access using their personal computers. An Internet
version is also available. Through this product, customers have the ability
to take a more active role in their trading activities by (i) requesting
quotes for stocks, mutual funds and options on all exchanges; (ii) the
placement of orders; and (iii) the ability to obtain status reports for
previously placed orders.
IMA Account. BHC Securities offers an investment management account
("IMA") product that allows checking privileges on brokerage accounts. The
Client may use its affiliated bank to clear the checks.
Customized Programming. BHC Securities provides its Clients with
customized software programming thereby allowing them to offer a brokerage
product that is unique to their business niche.
Annuity Processing. BHC Securities provides annuity clearing services
which allows for the annuity transaction to appear on a monthly customer
statement thereby enabling the customer to have one source of information
for all of his or her investments.
In addition to these complementary products, BHC also provides network
technology through netVest. netVest provides low cost quote services to
Clients, including PC and telephone inquiry and trading. netVest currently
markets brokerage order entry capability through personal computers and other
brokerage product applications suitable for delivery on the Internet.
RETAIL BROKERAGE BUSINESS
BHC provides retail brokerage services at discount commission rates through
TradeStar. The TradeStar customer base is a large diversified group that
reaches throughout the United States. In addition, TradeStar provides discount
brokerage services for correspondent banks.
All securities transactions for TradeStar's accounts are cleared through BHC
Securities. In 1996, TradeStar's customers accounted for approximately 147,000
trades, or 7%, of BHC Securities' total transaction volume and approximately
13% of BHC's total operating income. At December 31, 1996, TradeStar had
approximately 51,000 accounts carried by BHC Securities of which 846 were
margin accounts with debit balances totaling approximately $52,290,000.
The products and services offered by TradeStar include such mainstream
investment vehicles as stocks, options, bonds, tax-free investments, mutual
funds, annuities and retirement accounts. TradeStar also offers money market
funds with automatic daily sweeping and check writing privileges. The
TradeStar Express account provides deep discount commission rates, low margin
rates and no-fee SDIRA products for the active investor. In 1996, this service
accounted for approximately 43,561 trades or 29% of the total transactions for
TradeStar.
THIRD PARTY MARKETING ACTIVITIES
BHC, through BHCM, provides third party marketing activities primarily to
banks and other financial institutions. Organized as a Delaware corporation in
1993, BHCM obtained NASD membership in 1994 and is authorized to engage in a
general securities business. In providing third party marketing services, BHCM
carries the securities registrations and insurance licenses and maintains
regulatory supervision over the activities of a sales staff whose sole purpose
is to sell or otherwise market mutual fund and insurance products on behalf of
and for the benefit of the financial institution.
TradeStar's direct bank access program, known as Investor Services, which
makes marketing materials and statement inserts available to banks and other
financial institutions to promote BHC Securities' services, is now marketed by
BHCM. All customers introduced to BHCM in this way become accounts carried by
BHC Securities. On behalf of BHCM, TradeStar provides administrative and
support services as requested under a Management Agreement with BHCM dated as
of December 30, 1996. As of December 30, 1996, TradeStar Investor Services
provided its third party services to 112 banks and financial institutions.
57
DEPENDENCE ON KEY CLIENTS
While BHC Securities serves a diversified client base, three Clients,
Citicorp Investment Services, Inc. ("CIS"), USAA Investment Management Company
("USAA") and PNC Capital Markets ("PNC"), accounted for 14%, 10% and 10%,
respectively, of BHC's total revenues in 1996. For the years ended December
31, 1995 and 1994, revenues generated from CIS and PNC exceeded 10% of total
revenues. Revenues from CIS and PNC were 13% and 11%, respectively for 1995
and 14% and 11%, respectively, for 1994.
BHC has entered into a written agreement with CIS to continue its clearing
relationship with BHC Securities through June 30, 1998.
Norwest Investment Services, Inc. ("NISI"), which accounted for 7% of BHC's
total revenues in 1996, had given informal notice of its intention to
internalize its securities processing services as reported in the second
quarter of 1995. NISI has deferred its internalization until the third quarter
of 1997. This deferral is the most recent in a series of decisions by NISI to
continue, for at least a short period of time, their relationship with BHC
Securities.
On October 16, 1996, USAA advised BHC Securities in writing that it intended
to internalize its brokerage operations in the latter half of 1997. No
specific date has been given to BHC Securities by USAA as to its intended date
for internalization, but it is anticipated that this will occur during the
fourth quarter of 1997.
Clearing Agreements with BHC Securities' Clients are generally terminable
without a substantial penalty upon between 60 days and six months prior
notice, however, several of its Clients have entered into long term contracts.
Clearing Agreements with a majority of BHC Securities' Clients have been in
effect for more than eleven (11) years.
COMPETITION AND RISK
BHC's Processing and Support Services, retail brokerage and third party
marketing activities operate in highly competitive markets. Some of BHC's
competitors have greater capital and more resources available to them than
does BHC.
BHC Securities encounters intense competition in providing Processing and
Support Services from several highly visible, major securities firms. In many
instances, BHC Securities competes with such firms for the same Clients and
market share. BHC Securities believes that the main competitive factors are
price, quality of service, convenience, product availability and the
technology platforms upon which BHC Securities' system and services are based.
While some clearing brokers may charge lower fees for certain transactions,
BHC Securities believes that it competes favorably with such firms.
Like all firms involved in the provision of both securities clearing and
third party marketing services, BHC Securities and BHCM are subject to the
risk that a bank or financial institution (i) may change its marketing
approach by internalizing its activities; or (ii) may seek the services of
another clearing firm or third party marketer whether or not as a result of
the recent proliferation of bank consolidations.
EMPLOYEES
At December 31, 1996, BHC and its subsidiaries had 471 full-time employees,
none of whom was represented by a union. BHC believes that its relations with
its employees are good.
PROPERTIES
BHC and BHC Securities occupy office space of approximately 68,150 square
feet at One Commerce Square, 2005 Market Street, Philadelphia, PA 19103-3212
under a lease with an initial term that expires in September, 2003, with the
right to extend the term for two additional five-year periods. BHCM, TradeStar
and its branch offices occupy office space aggregating approximately 28,150
square feet, all of which is leased under leases having various terms through
2002.
58
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED
FINANCIAL INFORMATION
The following unaudited pro forma condensed consolidated balance sheets
combine the condensed consolidated balance sheets of Fiserv and BHC as of
December 31, 1996 and 1995. The following unaudited pro forma condensed
consolidated statements of operations combine the condensed consolidated
statements of Fiserv and BHC for each of the three years in the period ended
December 31, 1996. The pro forma information is based on the historical
financial statements of Fiserv and BHC, giving effect to the Merger under the
pooling of interests method of accounting, and the assumptions and adjustments
in the accompanying notes to the pro forma condensed consolidated financial
statements.
The pro forma condensed consolidated balance sheets and the pro forma
condensed consolidated statements of operations have been prepared by Fiserv
management based upon the audited financial statements of Fiserv and BHC for
the periods indicated.
The pro forma condensed consolidated statements of operations are not
necessarily indicative of the results that actually would have occurred if the
acquisition had occurred at the beginning of the periods indicated or which
may be obtained in the future. The pro forma financial statements should be
read in conjunction with the audited financial statements of Fiserv for the
year ended December 31, 1996, as incorporated by reference in its Annual
Report on Form 10-K for the year which is incorporated herein by reference,
and in conjunction with the audited financial statements of BHC for the year
ended December 31, 1996, as included in its Annual Report on Form 10-K for the
year which is incorporated herein by reference.
59
PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1996
(UNAUDITED)
(IN THOUSANDS)
FISERV BHC ADJUSTMENTS COMBINED
---------- --------- ----------- ----------
ASSETS
Cash and cash equivalents.... $ 80,833 $ 15,288 $3,850 (B,C) $ 99,971
Cash and securities
segregated under federal
regulations................. 2,411 2,411
Accounts receivable from
customers and other......... 160,747 493,635 654,382
Receivable from brokers or
dealers and clearing
organizations............... 227,199 227,199
Prepaid expenses and other
assets...................... 54,354 20,634 74,988
Trust account investments.... 970,553 970,553
Other investments............ 53,556 16,988 70,544
Deferred income taxes........ 32,083 32,083
Property and equipment--Net.. 143,661 4,752 148,413
Internally generated computer
software--Net............... 70,487 70,487
Identifiable intangible
assets relating to
acquisitions--Net........... 50,156 4,392 54,548
Goodwill--Net................ 292,089 292,089
---------- --------- ------ ----------
Total Assets............... $1,908,519 $ 785,299 $3,850 $2,697,668
========== ========= ====== ==========
LIABILITIES AND SHAREHOLDERS'
EQUITY
Short-term bank loans
payable..................... $ 33,200 $ 33,200
Payable to brokers or dealers
and clearing organizations.. 230,975 230,975
Payable to customers
including free credit
balances of $318,303........ 366,421 366,421
Accounts payable............. $ 43,486 43,486
Accrued expenses............. 60,747 61,236 121,983
Accrued income taxes......... 7,510 7,510
Deferred revenues............ 46,089 46,089
Trust account deposits....... 970,553 970,553
Long-term debt............... 271,502 271,502
Other obligations............ 1,362 1,362
---------- --------- ----------
Total liabilities.......... 1,401,249 691,832 2,093,081
---------- --------- ----------
SHAREHOLDERS' EQUITY:
Common stock outstanding..... 453 8 57 (A,B) 518
Additional paid-in capital... 323,268 39,582 (9,083)(A,B) 353,767
Unrealized gain on
investments................. 18,621 18,621
Accumulated earnings......... 164,928 69,303 (2,550)(C) 231,681
Treasury stock at cost....... (15,426) 15,426 (B)
---------- --------- ------ ----------
Total shareholders'
equity.................... 507,270 93,467 3,850 604,587
---------- --------- ------ ----------
Total liabilities and
shareholders' equity.... $1,908,519 $ 785,299 $3,850 $2,697,668
========== ========= ====== ==========
See notes to unaudited pro forma condensed consolidated financial statements
60
PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1995
(UNAUDITED)
(IN THOUSANDS)
FISERV BHC ADJUSTMENTS COMBINED
---------- -------- ----------- ----------
ASSETS
Cash and cash equivalents..... $ 59,743 $ 21,517 $3,850 (B,C) $ 85,110
Cash and securities segregated
under federal regulations.... 2,312 2,312
Accounts receivables from
customers and other.......... 154,628 377,535 532,163
Receivables from brokers or
dealers and clearing
organizations................ 196,321 196,321
Prepaid expenses and other
assets....................... 63,893 15,302 79,195
Trust account investments..... 931,732 931,732
Other investments............. 55,748 11,502 67,250
Deferred income taxes......... 39,527 39,527
Property and equipment-Net.... 148,343 4,714 153,057
Internally generated computer
software--Net................ 73,863 73,863
Identifiable Intangible assets
relating to acquisitions--
Net.......................... 57,270 4,799 62,069
Goodwill-Net.................. 300,552 300,552
---------- -------- ------ ----------
Total Assets............ $1,885,299 $634,002 $3,850 $2,523,151
========== ======== ====== ==========
LIABILITIES AND SHAREHOLDERS'
EQUITY
Short-term bank loans
payable...................... $ 41,900 $ 41,900
Payable to brokers or dealers
and clearing organizations... 190,810 190,810
Payable to customers including
free credit balances of
$230,243..................... 270,761 270,761
Accounts payable.............. $ 43,948 43,948
Accrued expenses.............. 59,614 45,223 104,837
Accrued income taxes.......... 6,116 6,116
Deferred revenues............. 40,754 40,754
Trust account deposits........ 917,189 917,189
Long-term debt................ 381,361 381,361
Other obligations............. 2,055 2,055
---------- -------- ----------
Total liabilities....... 1,451,037 548,694 1,999,731
---------- -------- ----------
SHAREHOLDERS' EQUITY:
Common stock outstanding...... 449 8 $ 57 (A,B) 514
Additional paid-in capital.... 315,800 39,582 (30)(A,B) 355,352
Unrealized gain on invest-
ments........................ 15,268 15,268
Accumulated earnings.......... 102,745 52,091 (2,550)(C) 152,286
Treasury stock at cost........ (6,373) 6,373 (B)
---------- -------- ------ ----------
Total shareholders'
equity................... 434,262 85,308 3,850 523,420
---------- -------- ------ ----------
Total liabilities and
shareholders' equity... $1,885,299 $634,002 $3,850 $2,523,151
========== ======== ====== ==========
See notes to unaudited pro forma condensed consolidated financial statements
61
PRO FORMA CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE DATA)
YEAR ENDED DECEMBER 31
1994 1994 1994 1994 1995 1995 1995 1995 1996 1996
FISERV BHC ADJUSTMENT COMBINED FISERV(1) BHC ADJUSTMENT COMBINED(1) FISERV BHC
-------- ------- ---------- -------- --------- ------- ---------- ----------- -------- -------
Revenues......... $579,839 $55,458(2) $635,297 $703,380 $65,724(2) $769,104 $798,268 $81,181(2)
-------- ------- -------- -------- ------- -------- -------- -------
COST OF REVENUES:
Salaries,
commission and
payroll related
costs........... 281,651 17,341 298,992 330,845 20,335 351,180 371,526 23,406
Data processing
expenses, rental
and
telecommunication
costs........... 81,320 81,320 95,798 95,798 90,919
Other operating
expenses........ 109,975 18,749 128,724 125,498 20,799 146,297 145,230 25,650
Depreciation and
amortization of
property and
equipment....... 31,350 2,615 33,965 38,480 2,205 40,685 42,241 2,212
Purchased
incomplete
software
technology...... 172,970 172,970
Amortization of
intangible
assets.......... 10,846 10,846 25,880 25,880 20,983
Amortization of
internally
generated
computer
software--net... (9,599) (9,599) (6,382) (6,382) 3,732
-------- ------- -------- -------- ------- -------- -------- -------
Total........... 505,543 38,705 544,248 783,089 43,339 826,428 674,631 51,268
-------- ------- -------- -------- ------- -------- -------- -------
Operating income
(loss).......... 74,296 16,753 91,049 (79,709) 22,385 (57,324) 123,637 29,913
Interest
expense--net.... 6,951 6,951 18,822 18,822 19,088
-------- ------- -------- -------- ------- -------- -------- -------
Income (loss)
before income
taxes........... 67,345 16,753 84,098 (98,531) 22,385 (76,146) 104,549 29,913
Income tax
provision
(credit)........ 26,938 6,129 33,067 (38,668) 8,448 (30,220) 42,865 11,889
-------- ------- -------- -------- ------- -------- -------- -------
Net income
(loss).......... $ 40,407 $10,624 $ 51,031 ($59,863) $13,937 ($45,926) $ 61,684 $18,024
======== ======= ======== ======== ======= ======== ======== =======
Net income (loss)
per common and
common
equivalent
share........... $ 0.99 $ 1.08 ($1.36) ($0.91) $ 1.34
======== ======== ======== ======== ========
Shares used in
computing net
income per
share........... 40,735 6,566(D) 47,301 44,008 6,566(D) 50,574 46,198
======== ===== ======== ======== ===== ======== ========
1996 1996
ADJUSTMENT COMBINED
----------- --------
Revenues......... $879,449
--------
COST OF REVENUES:
Salaries,
commission and
payroll related
costs........... 394,932
Data processing
expenses, rental
and
telecommunication
costs........... 90,919
Other operating
expenses........ 170,880
Depreciation and
amortization of
property and
equipment....... 44,453
Purchased
incomplete
software
technology......
Amortization of
intangible
assets.......... 20,983
Amortization of
internally
generated
computer
software--net... 3,732
--------
Total........... 725,899
--------
Operating income
(loss).......... 153,550
Interest
expense--net.... 19,088
--------
Income (loss)
before income
taxes........... 134,462
Income tax
provision
(credit)........ 54,754
--------
Net income
(loss).......... $ 79,708
========
Net income (loss)
per common and
common
equivalent
share........... $ 1.51
========
Shares used in
computing net
income per
share........... 6,566(D) 52,764
=========== ========
- -------
(1) 1995 includes changes related to the acquisition of ITI which are a pre-
tax special, one-time, non-cash charge of $173 million to expense the
purchased ITI Premier II research and development and a pre-tax charge of
$9.9 million for the accelerated amortization of the completed ITI Premier
I software. The combined after-tax charge was $109.6 million. Pro forma
combined Fiserv and BHC net income and earnings per share before such
charges would have been $63.8 million and $1.26, respectively.
(2) BHC revenues for the years ending December 31, 1994, 1995 and 1996 in the
accompanying pro forma statements are stated net of interest expense of
$11,918, $15,630 and $16,636, respectively.
See notes to unaudited pro forma condensed consolidated financial statements
62
NOTES TO PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
The foregoing unaudited pro forma condensed consolidated financial
information assumes Fiserv acquired all the outstanding shares of BHC Common
Stock for $33.50 per share in a stock for stock Merger. The number of shares
of Fiserv Common Stock BHC Stockholders will receive will be determined by
multiplying the number of shares of BHC Common Stock outstanding by the
Conversion Ratio, which is defined as the quotient of (i) $33.50, divided by
(ii) the Average Fiserv Stock Price, which is the average closing prices of
Fiserv Common Stock as reported on NASDAQ for the 20 trading days ending two
trading days prior to the Effective Time. It is contemplated that the Merger
will be accounted for as a pooling of interests. The following adjustments are
necessary to reflect the proposed transaction.
(A) Reflects the issuance of 6,566,000 shares of Fiserv Common Stock for all
shares of BHC Common Stock outstanding as of the Effective Time (taking into
account common stock equivalents and shares to be sold by BHC in the BHC Stock
Offering) assuming an Average Fiserv Stock Price for Fiserv of $36.625.
(B) Reflects proceeds from sale of 200,000 shares of BHC Common Stock at
$32.00 per share from treasury and retirement of remaining BHC treasury
shares.
(C) To record the estimated costs attributable to the Merger. Such costs
will be charged to operations as incurred. The costs consist of the following:
Financial Advisory Fees...................................... $1,925,000
Legal and Accounting......................................... 550,000
Printing and Other........................................... 75,000
----------
$2,550,000
==========
(D) Reflects the issuance of 6,566,000 Fiserv shares for BHC shares
including treasury shares and stock options--$240,497,000 at an Average Fiserv
Stock Price of $36.625.
63
DESCRIPTION OF FISERV COMMON STOCK
The holders of Fiserv Common Stock are entitled to one vote for each share
held of record on all matters submitted to a vote of stockholders. Holders of
Fiserv Common Stock are entitled to receive ratably such dividends as may be
declared by the Board of Directors of Fiserv out of funds legally available
therefor. In the event of a liquidation, dissolution or winding up of Fiserv,
holders of Fiserv Common Stock are entitled to share ratably in all assets
remaining after payment of liabilities. Holders of Fiserv Common Stock have no
preemptive rights to subscribe for unissued shares of capital stock of Fiserv.
There are no cumulative voting rights with respect to the Fiserv Common Stock,
with the result that holders of a majority of the Fiserv Common Stock may
elect all Fiserv's directors.
As of April 15, 1997, there were approximately 30,000 holders of record of
Fiserv Common Stock.
Fiserv has appointed Firstar Trust Company, Milwaukee, Wisconsin, as
transfer agent and registrar for the Fiserv Common Stock.
64
COMPARISON OF RIGHTS OF STOCKHOLDERS OF FISERV AND BHC
CERTAIN PROVISIONS OF WISCONSIN AND DELAWARE LAW
Upon consummation of the Merger, the stockholders of BHC, which is a
Delaware corporation, will become stockholders of Fiserv, which is a Wisconsin
corporation. The stockholders' rights will be governed by the Wisconsin
Business Corporation Law ("WBCL"), Fiserv's Articles of Incorporation, as
amended (the "Articles"), and Fiserv's Bylaws, which differ in certain
material respects from the Delaware General Corporation Law ("DGCL"), BHC's
Amended and Restated Certificate of Incorporation (the "Certificate"), and
BHC's Amended and Restated Bylaws.
Although it is not practical to compare all differences between (i)
Wisconsin law and the Articles and Bylaws of Fiserv and (ii) Delaware law and
the Certificate and Bylaws of BHC, the following is a summary of certain
differences which may significantly affect the rights of stockholders. This
discussion is not intended to be complete and is qualified in its entirety by
references to Fiserv's Articles and Bylaws and BHC's Certificate and Bylaws.
Copies of BHC's Certificate and Bylaws and Fiserv's Articles and Bylaws are
available for inspection at the principal executive offices of BHC and copies
will be sent to BHC Stockholders upon request. Although the WBCL uses the term
"Shareholder" to reference holders of stock of a Wisconsin corporation, for
consistency such holders are referred to herein as "Stockholders."
CLASSIFIED BOARD OF DIRECTORS
The WBCL provides for the staggering of terms of directors by dividing the
directors into two or three groups. The Articles and Bylaws of Fiserv divide
the total number of directors into three groups, with each group serving
three-year terms. Similarly, the DGCL permits a corporation to divide
directors into one, two or three classes, the terms of which expire in
different years. The Certificate of BHC provides for three classes of
directors, with a three-year term for each class.
NUMBER OF DIRECTORS; CUMULATIVE VOTING
Under the WBCL, the authorized number of directors constituting the Board of
Directors is specified in, or fixed in accordance with, the articles of
incorporation or bylaws and may be increased or decreased by amendment to, or
in a manner provided in, the articles of incorporation or the bylaws. Under
Fiserv's Bylaws, the number of directors is determined by the Board of
Directors, but shall not be less than three nor more than nine. Fiserv
currently has eight directors each of whom serves for a three-year term and
until his successor has been elected and is qualified. The terms of three
Fiserv directors expire in each of 1998 and 1999 and the terms of two Fiserv
directors expire in 2000.
Under the DGCL, the number of directors shall be fixed by, or in the manner
provided by, the bylaws unless the certificate of incorporation fixes the
number of directors, in which case a change in the number of directors may be
made only by amendment of the certificate. Under BHC's Certificate, the Board
of Directors shall consist of not less than six nor more than fifteen
directors. The BHC Board currently consists of eight members, each of whom
serves a three-year term and until his or her successor is elected and
qualified.
Cumulative voting, which enhances the ability of minority stockholders to
elect directors, is not available under either the WBCL or the DGCL unless
provided for in the corporation's articles of incorporation or certificate of
incorporation, as the case may be. Neither Fiserv's Articles nor BHC's
Certificate provide for cumulative voting.
REMOVAL OF DIRECTORS; FILLING VACANCIES ON THE BOARD OF DIRECTORS
Under the WBCL, a director may generally be removed by the stockholders,
with or without cause, if the number of votes cast to remove the director
exceeds the number of votes cast not to remove him or her, unless the articles
of incorporation, or bylaws adopted under authority granted in the articles of
incorporation, provide
65
for a greater voting requirement. Fiserv's Articles have no such provisions.
Under the DGCL, in the case of a corporation whose board is classified, a
director may be removed only for cause by the holders of a majority of the
outstanding shares entitled to vote for the election of directors, unless the
certificate of incorporation provides otherwise. BHC's Certificate provides
that, subject to any rights of holders of Preferred Stock, directors may be
removed from office only for cause by the affirmative vote of the holders of
at least two-thirds of the total outstanding capital stock that may be voted
on all matters submitted to stockholders generally.
Under the WBCL, the circuit court for the county where a corporation's
principal office or registered office is located may remove a director of the
corporation from office in a proceeding brought either by the corporation or
by its stockholders holding at least 10% of the outstanding shares of any
class, if the court finds that the director engaged in fraudulent or dishonest
conduct or gross abuse of authority or discretion with respect to the
corporation and that removal is in the best interest of the corporation. The
DGCL contains no similar provision.
Under the WBCL, unless the articles of incorporation provide otherwise,
which Fiserv's Articles do not, a vacancy occurring on the board of directors
may be filled by the stockholders or the directors remaining in office. Under
the DGCL, unless otherwise provided in the certificate of incorporation or
bylaws, vacancies and newly created directorships resulting from an increase
in the authorized number of directors elected by all of the stockholders
having the right to vote as a single class may be filled by a majority of the
directors then in office or by the sole remaining director. BHC's Certificate
provides that a newly created directorship resulting from an increase in the
number of directors or any vacancy on the Board of Directors resulting from
death, resignation, disqualification, removal or other cause shall be filled
by the remaining director(s) then in office. Any director so elected will hold
office for the remainder of the full term of the class in which the new
directorship was created or the vacancy occurred and until such director's
successor is elected and qualified.
The DGCL further provides that, if at the time of filling any vacancy or
newly created directorship, the directors then in office constitute less than
a majority of the whole board (as constituted immediately prior to such
increase), the Delaware Court of Chancery may, upon application of any
stockholder(s) holding at least 10 percent of the outstanding shares having
the right to vote for directors, order an election to fill such vacancy or
newly created directorship, or to replace the directors chosen by the
directors then in office. The WBCL contains no similar provision.
LIMITATION ON DIRECTORS' LIABILITY; INDEMNIFICATION
The WBCL provides that a director is not liable to the corporation, its
stockholders, or any person asserting rights on behalf of the corporation or
its stockholders for liabilities arising from a breach of, or failure to
perform, any duty resulting solely from his or her status as director, unless
the person asserting liability proves that the breach or failure to perform
constitutes: (1) wilful failure to deal fairly with the corporation or its
stockholders in connection with a matter in which the director has a material
conflict of interest; (2) a violation of criminal law, unless the director had
reasonable cause to believe that the conduct was lawful or no reasonable cause
to believe that the conduct was unlawful; (3) a transaction from which the
director derived an improper personal profit; or (4) wilful misconduct. The
WBCL permits a corporation to limit the statutory immunity from director
liability in its articles of incorporation. Fiserv's Articles contain no such
limitation.
The WBCL provides that a corporation shall indemnify a director or officer,
to the extent that he or she has been successful on the merits or otherwise in
the defense of a proceeding, for all reasonable expenses incurred in the
proceeding if the director or officer was a party because of his or her status
as a director or officer. Additionally, a corporation shall indemnify a
director or officer against liability incurred by a director or officer in a
proceeding to which the director or officer was a party because he or she is a
director or officer of the corporation, unless liability was incurred because
the director or officer breached or failed to perform a duty that he or she
owes to the corporation and the breach or failure to perform constitutes any
of the conduct as enumerated above relating to liability of directors.
Further, a court of law may order that the corporation provide indemnification
to a director or officer if it finds that the director or officer is entitled
thereto under the applicable
66
statutory provision or is fairly and reasonably entitled thereto in view of
all the relevant circumstances, whether or not such indemnification is
required under the applicable statutory provision.
The WBCL permits a corporation to provide additional rights to
indemnification under its articles of incorporation or bylaws, by written
agreement, by resolution of its board of directors or by a vote of the holders
of a majority of its outstanding shares, except that the corporation may not
indemnify a director or officer unless it is determined by or on behalf of the
corporation that the director or officer did not breach or fail to perform a
duty owed to the corporation which constitutes conduct as enumerated above
relating to liability of directors. Fiserv's Bylaws provide for
indemnification and advancement of expenses to directors and officers to the
fullest extent permitted by the WBCL. This provision is not exclusive of any
other rights to indemnification or the advancement of expenses to which a
director or officer may be entitled to under any written agreement, resolution
of directors, vote of stockholders, by law or otherwise.
The DGCL provides that a corporation's certificate of incorporation may
contain a provision which eliminates or limits the personal liability of a
director to the corporation or its stockholders for monetary damages for a
breach of fiduciary duty as a director, except for (1) acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation
of law, (2) any breach of the director's duty of loyalty to the corporation or
its stockholders, (3) an unlawful dividend or stock purchase or redemption, or
(4) any transaction from which the director derived an improper personal
benefit. BHC's Certificate includes such a provision eliminating and limiting
the personal liability of its directors to the extent permitted by the DGCL.
Under the DGCL, a corporation may generally indemnify its officers,
directors, employees and agents against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement of any proceedings (other than
proceedings by or in the right of the corporation), if they acted in good
faith and in a manner they reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful. A
similar standard is applicable in proceedings by or in the right of the
corporation, except that indemnification may be made only for expenses
(including attorneys' fees) and, in the event the person seeking
indemnification has been adjudicated liable, only to the extent an appropriate
court deems the indemnification for such expenses fair and reasonable. The
DGCL provides that to the extent such persons have been successful in the
defense of any proceeding, they must be indemnified by the corporation against
expenses actually and reasonably incurred in connection therewith. The
Certificate of BHC provides that the legal representatives, directors, and
officers of BHC will be indemnified to the fullest extent permitted by the
DGCL, which right to indemnification is not exclusive of any other right which
any person may have or acquire under any statute, provision of the
Certificate, the Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise.
MEETINGS OF STOCKHOLDERS
Under the WBCL, a corporation shall hold a special meeting of stockholders
if (1) a special meeting is called by the board of directors or any person
authorized by the articles of incorporation or bylaws to call a special
meeting, or (2) the holders of at least 10% of all votes entitled to be cast
on any issue proposed to be considered at the proposed special meeting deliver
a written demand to the corporation describing one or more purposes for which
such meeting is to be held. Fiserv's Bylaws provide that a special meeting of
stockholders may be called by the Chairman of the Board or the President, or
by order of the Board of Directors, and that a special meeting shall be called
by the President or Secretary upon written request of stockholders holding at
least 10% of the votes entitled to be cast on any issue proposed to be
considered at such meeting.
Under the DGCL, special meetings of stockholders may be called by the board
of directors or by such persons as may be authorized by the certificate of
incorporation or the by-laws. BHC's Bylaws provide that special meetings of
stockholders may be called by the Board of Directors, the Chairman of the
Board or the President and may not be called by any other person or persons.
67
QUORUM FOR STOCKHOLDER MEETINGS
The WBCL provides that a majority of the votes entitled to be cast on a
matter by a voting group constitutes a quorum, unless the articles of
incorporation, bylaws adopted under authority granted in the articles of
incorporation, or the WBCL provide otherwise. Neither Fiserv's Articles nor
its Bylaws deviate from this quorum requirement.
Under the DGCL, a corporation's certificate of incorporation or bylaws may
specify the percentage of votes which constitutes a quorum at a meeting of
stockholders, but in no event may a quorum consist of less than one-third of
the shares entitled to vote. BHC's Bylaws provide that a quorum exists if a
majority of the voting power entitled to vote is present in person or by proxy
at a meeting, except as otherwise provided by statute or by the Certificate.
STOCKHOLDER VOTING REQUIREMENTS GENERALLY
Under the WBCL, with respect to matters other than the election of
directors, unless a greater number of affirmative votes is required by the
WBCL, the articles of incorporation, or bylaws adopted under authority granted
in the articles of incorporation, if a quorum exists, action on any matter
generally is approved by the stockholders if the votes cast favoring the
action exceed the votes cast opposing the action. Unless otherwise provided in
the articles of incorporation, directors are elected by a plurality of the
votes cast by the shares entitled to vote. Fiserv's Articles and Bylaws
contain no provisions imposing greater voting requirements.
Under the DGCL, unless otherwise provided by the DGCL or a Delaware
corporation's certificate of incorporation or bylaws, if a quorum exists,
directors are elected by a plurality of votes of shares represented at a
meeting and entitled to vote, and action on all other matters is approved by
the affirmative vote of a majority of the shares represented at a meeting and
entitled to vote on a particular matter. BHC's Certificate requires a greater
vote on matters as discussed in the section captioned Supermajority Provisions
below. BHC's Bylaws provide that all elections shall be decided by the vote of
a majority of the stockholders present or represented and entitled to vote at
a meeting unless otherwise required by the DGCL or the Certificate or Bylaws
of BHC.
STOCKHOLDER ACTION BY WRITTEN CONSENT
The WBCL permits action otherwise required to be taken at a stockholders'
meeting to be taken without a meeting if (1) written consents are signed by
all stockholders entitled to vote on the action, or (2) if the articles of
incorporation so provide, written consents are signed by stockholders having
not less than the minimum number of votes that would be necessary to authorize
the proposed action at a meeting at which all shares entitled to vote were
present and voted. Fiserv's Articles provide that stockholders may take
actions by written consent in lieu of a meeting as described in (2) in the
preceding sentence.
Under the DGCL, unless otherwise provided in the certificate of
incorporation, any action required or which may be taken at any annual or
special meeting of stockholders may be taken without a meeting if written
consents are obtained from the holders of outstanding stock having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereat were
present and voted. BHC's Articles do not limit this statutory provision.
SUPERMAJORITY PROVISIONS
Except as discussed below in the section captioned "Stockholder Voting in
Certain Significant Transactions; Takeover Legislation," neither the WBCL nor
Fiserv's Articles and Bylaws impose supermajority voting requirements.
Under the DGCL, the certificate of incorporation may provide for the vote of
a larger portion of the stock or of any class or series thereof, or of any
other securities having voting power, or a larger number of the directors,
than is required by the DGCL. BHC's Certificate requires the affirmative vote
of the holders of at least
68
two-thirds of the outstanding stock to repeal, alter, amend or rescind a bylaw
(the Board of Directors also has this power), to remove any or all directors,
or to amend certain articles contained in the Certificate.
STOCKHOLDER VOTING IN CERTAIN SIGNIFICANT TRANSACTIONS; TAKEOVER LEGISLATION
Under the WBCL, a corporation may sell, lease, exchange or otherwise dispose
of all, or substantially all, of its property, other than in the usual and
regular course of business, if such disposition is approved by a majority of
all the votes entitled to be cast thereon. A merger or share exchange plan
must be approved by each voting group entitled to vote separately on the plan
by a majority of all the votes entitled to be cast on the plan by that voting
group.
The WBCL contains certain provisions that, unless a corporation elects not
to be covered by such provisions, and Fiserv has not so elected, require
approval of a supermajority of stockholders for certain "business
combinations" involving persons who are "significant shareholders" before the
transaction or become "significant shareholders" after the transaction. A
"significant shareholder" is, among others, a person who is, or was within two
years of the transaction, a beneficial owner of 10% or more of the voting
power of the applicable corporation. In such a case, unless the business
combination satisfies certain "fair price" criteria, the business combination
requires the approval of 80% of the votes entitled to be cast by the
outstanding voting shares of the corporation voting as a single class and two-
thirds of all such shares excluding the shares owned by a significant
stockholder.
The WBCL additionally regulates a broad range of "business combinations"
between a corporation and an "interested stockholder." "Business combination"
is defined as including a merger or a share exchange, sale of assets, issuance
of stock or rights to purchase stock and certain related party transactions.
An "interested stockholder" is a person who beneficially owns, directly or
indirectly, 10% of the outstanding voting stock of a corporation or who is an
affiliate or associate of the corporation and beneficially owned 10% of the
voting stock within the last three years. In certain cases, the WBCL prohibits
a corporation from engaging in a business combination with an interested
stockholder for a period of three years following the date on which the person
became an interested stockholder unless (i) the board of directors approved
the business combination or the acquisition of the stock prior to the
acquisition date, (ii) the business combination is approved by a majority of
the outstanding voting stock not owned by the interested stockholder, (iii)
the consideration to be received by stockholders meets certain requirements of
the statute with respect to form and amount or (iv) the business combination
is of a type specifically excluded from the coverage of the statute.
While a takeover offer is being made, or after a takeover offer has been
publicly announced and before it is concluded, the WBCL requires the approval
of the holders of a majority of shares entitled to vote before a public
corporation may acquire more than 5% of its voting shares at a price above
market value from a person who holds more than 3% of its voting shares and has
held such shares for less than two years, unless at least an "equal" offer is
made to acquire all voting shares and all securities which may be converted
into voting shares. Similar approval is required before a public corporation
may sell or option assets which amount to at least 10% of its market value
unless the corporation has at least three directors who are not either
officers or employees of the corporation and a majority of the directors who
are not either officers or employees vote not to be governed by this
provision.
The WBCL provides that in particular circumstances the voting of shares of
an "issuing public corporation" (a Wisconsin corporation which has at least
100 Wisconsin resident stockholders, 500 or more stockholders of record and
total assets exceeding $1 million) held by any person in excess of 20% of the
voting power is limited to 10% of the full voting power of such excess shares.
Full voting power may be restored if a majority of the voting power of shares
represented at a meeting, including those held by the party seeking
restoration, are voted in favor of such restoration.
69
The DGCL requires that a merger or consolidation or a sale, lease or
exchange of all or substantially all of the property and assets of a
corporation be approved by the holders of a majority of the outstanding stock
of the corporation entitled to vote thereon.
The DGCL generally prohibits a stockholder owing 15 percent or more of a
corporation's outstanding voting stock (an "interested stockholder") from
engaging in certain business combinations involving the corporation during the
three years after the time the person became an interested stockholder unless
(1) prior to such time, the board of directors approved either the business
combination or the transaction which resulted in the stockholder becoming an
interested stockholder, (2) upon the consummation of the transaction which
resulted in the stockholder becoming an interested stockholder, the
stockholder owned at least 85 percent of the voting stock outstanding at the
time the transaction commenced, (3) at or subsequent to such time, the
transaction is approved by the board of directors and by the stockholders by a
vote of two-thirds of the disinterested outstanding voting stock, (4) the
corporation's original certificate of incorporation provides that the
corporation shall not be governed by the statute or (5) a majority of shares
entitled to vote approve an amendment to the corporation's certificate of
incorporation or bylaws expressly electing not to be governed by the statute
(but such amendment may not be effective until one year after it was adopted
and may not apply to any business combination between the corporation and any
person who became an interested stockholder on or prior to such adoption).
These business combinations include, with certain exceptions, mergers,
consolidations, sales of assets and transactions benefiting the interested
stockholder. BHC's Certificate and Bylaws contain no provisions electing not
to be governed by this statute.
STATUTORY STOCKHOLDER LIABILITY
The WBCL provides that the stockholders of a corporation are personally
liable up to an amount equal to the par value of shares owned by them, and to
the consideration for which shares without par value were issued, for debts
owing to employees of the corporation for services performed for such
corporation, but not exceeding six months' service in any case. The liability
imposed by the predecessor to this statute was interpreted in a trial court
decision to extend to the original issue price for shares, rather than the
stated par value. Although affirmed by the Wisconsin Supreme Court the case
offers no precedential value due to the fact that the decision was affirmed by
an equally divided court. The DGCL contains no comparable provision.
DERIVATIVE ACTIONS
Under both the WBCL and the DGCL, a stockholder may bring a derivative
action if he or she was a stockholder at the time of the alleged wrongdoing,
or acquired the shares by operation of law from a person who was a stockholder
at such time. Under the WBCL, a stockholder may not commence a derivative
action until he makes a written demand on the corporation to take suitable
action and a period of ninety days expires, unless the stockholder is notified
that the corporation has rejected the demand or irreparable injury to the
corporation would result by waiting for the period to expire. Under Delaware
law, a stockholder has no right to bring a derivative action until he makes a
demand on the corporation to institute such action or demonstrates that demand
would be futile.
DISSENTERS' RIGHTS AND APPRAISAL RIGHTS
Under the WBCL, a stockholder of a corporation is generally entitled to
receive payment of the fair value of such stockholder's stock if such
stockholder dissents from a proposed merger or stock exchange or a sale or
exchange of all or substantially all of the property and assets of the
corporation. However, except with respect to business combinations involving
significant stockholders (as such terms are described in the first paragraph
under "Stockholder Voting in Certain Significant Transactions; Takeover
Legislation" above), dissenters' rights are not available to holders of shares
that are registered on a national securities exchange or quoted on NASDAQ.
Currently, Fiserv Common Stock is quoted on NASDAQ.
Under the DGCL, a stockholder of a corporation who has not voted for or
consented to a merger or consolidation is entitled to an appraisal by the
Delaware Court of Chancery of the fair value of his shares of
70
stock. Such appraisal rights are not available to a stockholder of a Delaware
corporation if the shares are (1) listed on a national securities exchange or
designated as a national market system security on an interdealer quotation
system by the NASD, or (2) held of record by more than 2,000 stockholders.
Notwithstanding the foregoing, a stockholder does have appraisal rights with
respect to such shares if the stockholder is required by the terms of the
agreement of merger or consolidation to accept anything for his shares other
than (1) shares of stock of the corporation surviving or resulting from the
merger or consolidation, or depository receipts in respect thereof, (2) shares
of stock of any other corporation, or depository receipts in respect thereof,
which shares or receipts are so listed or designated or held of record by more
than 2,000 stockholders, (3) cash in lieu of fractional shares or fractional
depository receipts, or (4) any combination of the foregoing.
Delaware law does not provide appraisal rights to stockholders who dissent
from the sale of all or substantially all of the corporation's assets unless
the corporation's certificate of incorporation provides otherwise. BHC's
Certificate does not provide for appraisal rights in the context of a sale of
all or substantially all of BHC's assets.
STOCKHOLDER INSPECTION OF BOOKS AND RECORDS
The WBCL allows a stockholder, upon giving the required notice, to inspect
and copy the corporation's bylaws during regular business hours at a
reasonable location specified by the corporation. A stockholder fulfilling
specified requirements may inspect and copy, during regular business hours at
a reasonable location specified by the corporation, excerpts of any minutes or
records that the corporation is required to keep as permanent records,
accounting records of the corporation, and the record of stockholders, except
that the corporation may provide the stockholder with a list of stockholders
compiled no earlier than the date of the stockholder's demand instead of
allowing the stockholder to inspect and copy the record of stockholders.
The DGCL permits any stockholder the right, during usual business hours, to
inspect and copy the corporation's stock ledger, stockholder list and other
books and records for any proper purpose upon written demand under oath
stating the purpose thereof.
STOCKHOLDER RIGHTS PLAN
On November 12, 1996, the Board of Directors of BHC declared a dividend
distribution of one Right for each outstanding share of BHC Common Stock
payable as of December 5, 1996 to stockholders of record on November 25, 1996.
When exercisable, each Right entitles the registered holder to purchase from
BHC one one-hundredth of a share of Series A Junior Participating Preferred
Stock at a price of $64 per one one-hundredth of a share (the "Exercise
Price"), subject to adjustment in certain circumstances. The description and
terms of the Rights are set forth in the Rights Agreement.
Until a Distribution Date, as described below, occurs, the Rights are not
exercisable and remain attached to, and trade only with, the shares of BHC
Common Stock associated therewith. The Rights will become exercisable and
separate, and trade separately, from the BHC Common Stock and a Distribution
Date will occur upon the earlier to occur of (i) the close of business on the
tenth day following a public announcement that a person together with his or
her affiliates and associates has become the beneficial owner of 15 percent or
more of the shares of BHC Common Stock (an "Acquiring Person") or (ii) the
close of business on the tenth business day (or such later date as may be
determined by action of the Board of Directors of BHC before a person or group
becomes an Acquiring Person) following the commencement of, or public
announcement of an intention to make, a tender or exchange offer the
consummation of which would result in any person or group becoming the
beneficial owner of 15 percent or more of the shares of BHC Common Stock.
Unless the Rights are earlier redeemed, in the event that any person or
group becomes an Acquiring Person, each holder of a Right, other than the
Acquiring Person (whose Rights will thereupon become null and void), will
thereafter have the right to receive, upon payment of the Exercise Price, that
number of shares of BHC Common Stock having a market value at the time of the
transaction equal to two times the Exercise Price.
71
Unless the Rights are earlier redeemed, in the event that BHC were to be
acquired in a merger or other business combination or 50 percent or more of
the assets or earning power of BHC and its subsidiaries were sold or
transferred, proper provision will be made so that each holder of a Right,
other than an Acquiring Person (whose Rights will have become void), will
thereafter have the right to receive, upon payment of the Exercise Price, that
number of shares of common stock of the acquiring party having a fair market
value at the time of such transaction equal to two times the Exercise Price.
At any time after any person or group becomes an Acquiring Person and prior
to the earlier of one of the events described in the previous paragraph or the
acquisition by such Acquiring Person of 50 percent or more of the outstanding
shares of BHC Common Stock, the Board of Directors of BHC may exchange the
Rights (other than Rights owned by such Acquiring Person which will have
become void), in whole or in part, for shares of Common Stock or Series A
Junior Participating Preferred Stock (or a series of the Company's preferred
stock having equivalent rights, preferences and privileges), at an exchange
ratio of one share of Common Stock, or a fractional share of Series A Junior
Participating Preferred Stock (or other preferred stock) equivalent in value
thereto, per Right.
At any time prior to the time that a person becomes an Acquiring Person, BHC
may redeem the Rights in whole, but not in part, at a price of $0.01 per Right
(the "Redemption Price"). Immediately upon the action of the Board of
Directors of BHC authorizing redemption of the Rights, the right to exercise
the Rights will terminate and the only right of the holders of Rights will be
to receive the Redemption Price. For so long as the Rights are redeemable, the
Company may, except with respect to the Redemption Price, amend the Rights
Agreement in any manner. Unless the Rights Agreement is amended or the Rights
are sooner redeemed by BHC, the Rights will expire at the close of business on
November 12, 2006.
On March 2, 1997, prior to the execution of the Merger Agreement, the Board
of Directors of BHC amended the Rights Agreement such that Fiserv will not
become an Acquiring Person as a result of entering into the Merger Agreement
with BHC. In addition, BHC has agreed to amend the Rights Agreement so that it
terminates prior to the Effective Time. See "The Merger--Rights Plan." The
Rights Agreement and the amendment to the Rights Agreement have been filed as
exhibits to BHC's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996. The foregoing description of the Rights Agreement and the
Rights is qualified in its entirety by reference to the Rights Agreement.
Fiserv does not have a stockholder rights plan.
LOANS TO DIRECTORS
Under the WBCL, unless it is an advance or is made to defray expenses made
in the ordinary course of the corporation's business or an advance of expenses
with respect to indemnification, a corporation may not make loans to or
guaranty the obligation of a director unless the particular loan or guaranty
is approved by a majority of the votes represented by the voting shares of all
classes, voting as a single group, excluding votes owned or controlled by the
benefited director, or the board of directors determines that the loan or
guaranty benefits the corporation and either approves the specific loan or
guaranty or a general plan authorizing loans or guarantees.
Under the DGCL, a corporation may lend money to, or guaranty any obligation
of, or otherwise assist any officer or other employee of the corporation,
including any officer or employee who is a director of the corporation,
whenever, in the judgment of the directors, such loan, guaranty or assistance
may reasonably be expected to benefit the corporation. The loan, guaranty or
other assistance may be with or without interest, and may be unsecured, or
secured in such manner as the board of directors shall approve, including,
without limitation, a pledge of shares of stock of the corporation.
AMENDMENT OR REPEAL OF THE ARTICLES AND BYLAWS
In general, the WBCL provides that a corporation's articles of incorporation
may be amended through a proposal submitted by the board of directors to the
stockholders for their approval. Unless articles of
72
incorporation or bylaws provide otherwise, or unless class voting is required,
or unless the WBCL provides otherwise, the amendment may be approved by a
majority vote of the shares, entitled to vote thereon. Class votes are
required in certain circumstances which, in general, affect a class of stock
adversely or uniquely. In certain very limited circumstances, either specified
in the corporation's articles of incorporation or which involve certain
ministerial actions which are likely to be immaterial to the stockholders, the
WBCL permits the articles of incorporation to be amended by action of the
board of directors without stockholder approval. In general, under Wisconsin
law the bylaws of a corporation may be amended by the board of directors,
except in those instances in which the corporation's articles of incorporation
or bylaws provide otherwise. Action by stockholders to amend or repeal
amendments to the bylaws can overrule action taken by the board of directors.
Fiserv's Articles provide that they may be altered, amended or repealed by the
Board of Directors subject to the power of the stockholders to alter or repeal
any bylaw made by the Board of Directors.
Under the DGCL, a corporation's certificate of incorporation generally may
be amended only if approved by a majority of the outstanding stock entitled to
vote thereon. A corporation may confer the power to adopt, amend or repeal
bylaws on the directors, without divesting or limiting the powers of the
stockholders to adopt, amend or repeal bylaws. BHC's Certificate provides that
BHC's Bylaws may be adopted, repealed, altered, amended and rescinded by the
Board of Directors. Notwithstanding anything to the contrary in the Bylaws,
the affirmative vote of the holders of at least two-thirds of the total
outstanding capital stock that by its terms may be voted on all matters
submitted to stockholders generally shall be required in order for the
stockholders to repeal, alter, amend or rescind the Bylaws.
DIVIDEND DECLARATIONS
Under the WBCL, no distribution may be made if, after giving it effect,
either (1) the corporation would not be able to pay its debts as they become
due in the usual course of business, or (2) the corporation's total assets
would be less than the sum of its total liabilities plus, unless the articles
of incorporation permit otherwise, the amount that would be needed, if the
corporation were to be dissolved at the time of the distribution, to satisfy
the preferential rights upon dissolution of stockholders whose preferential
rights are superior to those receiving the distribution. Fiserv's Articles
contain no provision with respect to distributions.
Under the DGCL, the directors may, subject to any restrictions in a
corporation's certificate of incorporation, declare and pay dividends, either
(i) out of its surplus, or (ii) in case there shall be no surplus, out of the
net profits for the fiscal year in which the dividend is declared and/or the
preceding fiscal year. The directors may not declare a dividend out of net
profits, however, if the capital of the corporation is less than the aggregate
amount of capital represented by the issued and outstanding stock of all
classes having a preference upon the distribution of assets. BHC's Certificate
contains no limitations on such powers.
LEGAL MATTERS
The legality of the issuance of the Fiserv Common Stock being offered hereby
will be passed upon by Charles W. Sprague, General Counsel of Fiserv. Mr.
Sprague owns 21,461 shares of Fiserv Common Stock which number includes vested
but unexercised stock options.
Certain of the tax consequences of the Merger to BHC Stockholders (see "The
Merger--Certain Federal Income Tax Consequences of the Merger") will be passed
upon at the Effective Time, as a condition to the Merger, by Ballard Spahr
Andrews & Ingersoll, Philadelphia, Pennsylvania.
EXPERTS
The consolidated financial statements of Fiserv, Inc. and subsidiaries as of
December 31, 1996 and 1995 and for each of the three years in the period ended
December 31, 1996, incorporated by reference in this Proxy
73
Statement/Prospectus have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report with respect thereto, and are incorporated
herein by reference in reliance upon such report given upon the authority of
said firm as experts in accounting and auditing.
The consolidated financial statements of BHC Financial, Inc. and
subsidiaries as of December 31, 1996 and 1995 and for each of the three years
in the period ended December 31, 1996, and the related financial statement
schedules incorporated by reference in this Proxy Statement/Prospectus have
been audited by Coopers & Lybrand L.L.P., independent auditors, as stated in
their reports with respect thereto, and are incorporated herein by reference
in reliance upon such reports given upon the authority of said firm as experts
in accounting and auditing.
STOCKHOLDER PROPOSALS FOR BHC 1997 ANNUAL MEETING
BHC does not intend to hold an Annual Meeting of Stockholders in 1997 unless
the Merger is not consummated. In the event that the Merger is not
consummated, stockholder proposals which are intended to be presented at BHC's
1997 Annual Meeting of Stockholders must be received at the principal
executive offices of BHC, located at One Commerce Square, 2005 Market Street,
Philadelphia, Pennsylvania 19103-3212 a reasonable period prior to the mailing
of proxy materials for such meeting in order to be included in such proxy
materials.
74
APPENDIX A
- --------------------------------------------------------------------------------
AGREEMENT AND PLAN OF MERGER
AMONG
BHC FINANCIAL, INC.,
FISERV, INC.
AND
FISERV DELAWARE SUB, INC.
----------------
DATED AS OF MARCH 2, 1997
----------------
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
ARTICLE I
THE MERGER
PAGE
----
1.1. The Merger..................................................... A-1
1.2. Effective Time................................................. A-1
Organizational Documents, Directors and Officers of the
1.3. Surviving Corporation.......................................... A-2
1.4. Further Assurances............................................. A-2
Conversion of Fiserv Sub Common Stock, Common Stock and BHC
1.5. Options........................................................ A-2
1.6. Delivery of the Merger Consideration........................... A-3
1.7. Exchange of Shares............................................. A-3
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1. Representations and Warranties of BHC Parent................... A-4
2.1.1. Authorization; No Conflicts; Status of BHC Group, etc.......... A-4
2.1.2. Capitalization................................................. A-4
2.1.3. Financial Information.......................................... A-5
2.1.4. Undisclosed Liabilities........................................ A-5
2.1.5. Absence of Changes............................................. A-5
2.1.6. Taxes.......................................................... A-7
2.1.7. Properties and Assets.......................................... A-9
2.1.8. Contracts...................................................... A-9
2.1.9. Intellectual Property.......................................... A-10
2.1.10. Insurance...................................................... A-11
2.1.11. Litigation..................................................... A-11
Compliance with Laws and Other Instruments; Governmental
2.1.12. Approvals...................................................... A-11
2.1.13. Affiliate Transactions......................................... A-12
2.1.14. Government Regulation.......................................... A-12
2.1.15. Labor Matters, etc............................................. A-13
2.1.16. ERISA.......................................................... A-13
2.1.17. Brokers, Finders, etc.......................................... A-15
2.1.18. Environmental Matters.......................................... A-15
2.1.19. Pooling of Interests........................................... A-15
2.1.20. Disclosure..................................................... A-16
2.1.21. Proxy Statement/Prospectus..................................... A-16
2.2. Representations and Warranties of Fiserv and Fiserv Sub........ A-16
2.2.1. Authorization; No Conflicts; Status of Fiserv Group, etc....... A-16
2.2.2. Capitalization................................................. A-17
2.2.3. Undisclosed Liabilities........................................ A-17
2.2.4. Absence of Adverse Changes or Events........................... A-17
2.2.5. Taxes.......................................................... A-17
2.2.6. Title to Properties and Absence of Liens....................... A-18
2.2.7. Patents, Licenses and Infringement............................. A-18
2.2.8. Litigation..................................................... A-18
Compliance with Laws and Other Instruments; Governmental
2.2.9. Approvals...................................................... A-18
2.2.10. ERISA.......................................................... A-19
2.2.11. Brokers, Finders, etc.......................................... A-20
2.2.12. Pooling of Interests........................................... A-21
2.2.13. Disclosure..................................................... A-21
2.2.14. Proxy Statement/Prospectus..................................... A-21
ARTICLE III
COVENANTS
PAGE
----
3.1. Covenants of BHC Parent.......................................... A-21
3.1.1. Conduct of Business.............................................. A-21
3.1.2. No Solicitation.................................................. A-22
3.1.3. Access and Information........................................... A-22
3.1.4. Subsequent Financial Statements and Filings...................... A-22
3.1.5. Public Announcements............................................. A-23
3.1.6. Further Actions.................................................. A-23
3.1.7. Registration Statement........................................... A-24
3.1.8. Payment of Dividend.............................................. A-24
3.1.9. Offering to BHC Shareholders..................................... A-24
3.1.10. Rights Plan...................................................... A-24
3.1.11. Issuance of Additional Shares.................................... A-24
3.1.12. Delisting; Transfer Books........................................ A-25
3.2. Covenants of Fiserv and Fiserv Sub............................... A-25
3.2.1. Conduct of Business.............................................. A-25
3.2.2. Fiserv Acquisition Proposal...................................... A-25
3.2.3. Access and Information........................................... A-25
3.2.4. Subsequent Financial Statements and Filings...................... A-26
3.2.5. Public Announcements............................................. A-26
3.2.6. Further Actions.................................................. A-26
3.2.7. Tax-Free Reorganization Covenants................................ A-27
3.2.8. Employee Benefit Matters......................................... A-27
3.3. BHC Options and Option Plans..................................... A-27
3.4. Pooling Condition................................................ A-28
3.5. Nasdaq Requirements.............................................. A-28
3.6. Registration Statement........................................... A-28
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Conditions to Obligations of Each Party.......................... A-29
4.1.1. HSR Act Notification............................................. A-29
4.1.2. No Injunction, etc............................................... A-29
4.1.3. Other Consents................................................... A-29
4.1.4. Approval of Merger Shares for Listing............................ A-29
4.2. Conditions to Obligations of Fiserv and Fiserv Sub............... A-29
4.2.1. Representations, Performance, etc................................ A-29
4.2.2. Governmental Approvals........................................... A-29
4.2.3. Opinion of Counsel............................................... A-30
4.2.4. Proceedings...................................................... A-30
4.2.5. FIRPTA Certification............................................. A-30
4.3. Conditions to Obligations of BHC Parent.......................... A-30
4.3.1. Representations, Performance, etc................................ A-30
4.3.2. Governmental Approvals........................................... A-30
4.3.3. Opinions of Counsel.............................................. A-30
4.3.4. Proceedings...................................................... A-30
4.3.5. Tax Opinion...................................................... A-30
4.3.6. Certificates..................................................... A-31
ii
ARTICLE V
TERMINATION
PAGE
----
5.1. Termination....................................................... A-31
5.2. Effect of Termination............................................. A-31
ARTICLE VI
DEFINITIONS, MISCELLANEOUS
6.1. Definition of Certain Terms....................................... A-32
6.2. Survival of Representations, Warranties and Covenants............. A-36
6.3. Expenses; Transfer Taxes.......................................... A-36
6.4. Severability...................................................... A-36
6.5. Notices........................................................... A-36
6.6. Miscellaneous..................................................... A-37
6.6.1. Headings.......................................................... A-37
6.6.2. Entire Agreement.................................................. A-37
6.6.3. Counterparts...................................................... A-37
6.6.4. Jurisdictional Matters............................................ A-37
6.6.5. Binding Effect.................................................... A-38
6.6.6. Assignment........................................................ A-38
6.6.7. No Third Party Beneficiaries...................................... A-38
6.6.8. Waiver of Jury Trial.............................................. A-38
6.6.9. Amendment; Waivers................................................ A-38
iii
EXHIBITS AND SCHEDULES*
Exhibit A -- Form of Certificate of Incorporation of the Surviving Corporation
Exhibit B -- Form of By-Laws of the Surviving Corporation
Exhibit D -- Form of Exchange Agreement
Schedule 2.1.1(b) -- Company Conflicts and Governmental Approvals
Schedule 2.1.1(c) -- Due Organization
Schedule 2.1.2(b) -- Equity Interests of the BHC Group
Schedule 2.1.2(c) -- Option Holders
Schedule 2.1.2(d) -- Agreements with Respect to Capital Stock
Schedule 2.1.2(e) -- Other Investments
Schedule 2.1.4 -- Obligations or Liabilities
Schedule 2.1.5 -- Changes Since December 31, 1996
Schedule 2.1.6(a) -- Tax Returns; Payment of Taxes
Schedule 2.1.6(b) -- Tax Extensions
Schedule 2.1.6(c) -- Tax Filing Groups; Tax Filing Jurisdictions
Schedule 2.1.6(d) -- Tax Audits and Assessments
Schedule 2.1.6(f) -- Tax Sharing Arrangements
Schedule 2.1.6(g) -- Distributions Other than in Ordinary Course of Business
Schedule 2.1.6(h) -- Section 481 Adjustments
Schedule 2.1.6(i) -- Real Property in Transfer Tax Jurisdictions
Schedule 2.1.6(j) -- Affiliated Group Items
Schedule 2.1.6(m) -- Contracts or Plans of Affected by Change in Control
Schedule 2.1.7 -- Real Property
Schedule 2.1.8(a) -- Contracts
Schedule 2.1.8(b) -- Contract Exceptions
Schedule 2.1.9(a) -- Intellectual Property
Schedule 2.1.9(b) -- Intellectual Property Infringements
Schedule 2.1.10 -- Insurance Policies
Schedule 2.1.11 -- Litigation
Schedule 2.1.12(a) -- Compliance with Laws
Schedule 2.1.12(b) -- Governmental Approvals
Schedule 2.1.13 -- Affiliate Transactions
Schedule 2.1.14(a) -- Regulatory Compliance: Broker-Dealers
Schedule 2.1.16(a) -- ERISA Plans
Schedule 2.1.16(b) -- Minimum Funding Standards
Schedule 2.1.17 -- Brokers, Finders, etc.
Schedule 2.1.18 -- Environmental Matters
Schedule 2.1.19 -- Pooling
Schedule 2.2.1(b) -- No Conflicts
Schedule 2.2.2(c) -- Agreements with Respect to Capital Stock
Schedule 2.2.4 -- Undisclosed Liabilities
Schedule 2.2.8 -- Litigation
Schedule 2.2.9(a) -- Compliance with Laws
Schedule 2.2.9(b) -- Governmental Approvals
Schedule 2.2.10(a) -- ERISA Plans
Schedule 3.1.1 -- Conduct of Business
Schedule 3.2.1 -- Conduct of Business
*Exhibits and Schedules are not included.
iv
AGREEMENT AND PLAN OF MERGER
Agreement and Plan of Merger, dated as of March 2, 1997, among BHC
Financial, Inc., a Delaware corporation ("BHC Parent"), Fiserv, Inc., a
Wisconsin corporation ("Fiserv"), and Fiserv Delaware Sub, Inc., a Delaware
corporation ("Fiserv Sub") and a wholly owned subsidiary of Fiserv.
W I T N E S S E T H :
Whereas, BHC Parent is a Delaware corporation having authorized capital of
33,000,000 shares of Common Stock, of which 6,330,850 shares are issued and
outstanding on the date hereof (capitalized terms used herein without
definition having the meanings specified therefor in Section 6.1);
Whereas, Fiserv, Fiserv Sub and BHC Parent desire to have Fiserv Sub merge
with and into BHC Parent (if, but only if, at the time of the merger, Fiserv
Sub is a direct wholly-owned Subsidiary of Fiserv) or another direct wholly-
owned Subsidiary of Fiserv to which this Agreement may be assigned (in either
case, "Fiserv Sub") (the "Merger") on the terms and conditions and for the
consideration described in this Agreement;
Whereas, in furtherance of such Merger, the Boards of Directors of BHC
Parent, Fiserv and Fiserv Sub and the shareholder of Fiserv Sub have approved
the Merger upon the terms and subject to the conditions set forth in this
Agreement, and, in the case of BHC Parent, has directed that this Agreement be
submitted to its shareholders for approval;
Whereas, BHC Parent, Fiserv and Fiserv Sub desire to make certain
representations, warranties and agreements in connection with the Merger and
also to prescribe various conditions to the Merger.
Now, Therefore, in consideration of the mutual promises, covenants,
representations and warranties made herein and of the mutual benefits to be
derived therefrom, the parties hereto agree as follows:
ARTICLE I
The Merger
1.1. The Merger. In accordance with and subject to the terms and provisions
of this Agreement and the DGCL, at the Effective Time: (i) Fiserv Sub shall be
merged with and into BHC Parent, the separate existence of Fiserv Sub shall
cease and BHC Parent shall be the surviving corporation (the "Surviving
Corporation") and shall continue its corporate existence under the laws of
Delaware; (ii) all rights, privileges, immunities, powers, purposes,
franchises, properties and assets of BHC Parent and Fiserv Sub shall vest in
the Surviving Corporation; (iii) all debts, liabilities, obligations,
restrictions, disabilities and duties of BHC Parent and Fiserv Sub shall
become the debts, liabilities, obligations, restrictions, disabilities and
duties of the Surviving Corporation; and (iv) the certificate of incorporation
of the Surviving Corporation shall be amended so that it is substantially the
same as the certificate of incorporation of Fiserv Sub immediately prior to
the Effective Time and (v) the name of the Surviving Corporation shall be
changed to "Fiserv Clearing, Inc.". The parties intend that the Merger will
meet the requirements of Section 368(a)(1)(A) and 368(a)(2)(E)of the Code and
the United States Treasury regulations thereunder.
1.2. Effective Time. Upon the terms and subject to the conditions of this
Agreement, following the satisfaction or waiver of the conditions set forth in
Article IV, BHC Parent shall execute and file a Certificate of Merger
(together with any other documents required by Applicable Law to effectuate
the Merger) with the Secretary of State of the State of Delaware in accordance
with Sections 251 and 103 of the DGCL (the "Certificate of Merger"). Prior to
such filing, a closing (the "Closing") will be held at the offices of Ballard
Spahr Andrews & Ingersoll, 1735 Market Street, Philadelphia, Pennsylvania
19103 (or such other place as the parties may agree) at 10:00 a.m., Eastern
Standard Time, on the Scheduled Closing Date, for the purpose of
A-1
confirming all of the foregoing. The Merger shall become effective
simultaneously with the filing of the Certificate of Merger. The date and time
when the Merger shall become effective is referred to in this Agreement as
the"Effective Time."
1.3. Organizational Documents, Directors and Officers of the Surviving
Corporation. (a) Certificate of Incorporation. The Certificate of
Incorporation of the Surviving Corporation shall be amended so that from and
after the Effective Time, the Certificate of Incorporation of Fiserv Sub in
effect immediately prior to the Effective Time, which shall be in the form
attached hereto as Exhibit A, shall be the Certificate of Incorporation of the
Surviving Corporation until thereafter amended, altered or repealed as
provided therein or by Applicable Law.
(b) Bylaws. The Bylaws of the Surviving Corporation shall be amended so that
from and after the Effective Time, the bylaws of Fiserv Sub in effect
immediately prior to the Effective Time, which shall be in the form attached
hereto as Exhibit B, shall be the bylaws of the Surviving Corporation until
thereafter amended, altered or repealed as provided therein.
1.4. Further Assurances. If at any time after the Effective Time the
Surviving Corporation shall consider or be advised that any deeds, bills of
sale, assignments or assurances or any other acts or things are necessary,
desirable or proper (a) to vest, perfect or confirm, of record or otherwise,
in the Surviving Corporation its right, title or interest in, to or under any
of the rights, privileges, immunities, powers, purposes, franchises,
properties or assets of BHC Parent or Fiserv Sub, or (b) otherwise to carry
out the purposes of this Agreement, the Surviving Corporation and its proper
officers and directors or their designees shall be authorized to solicit in
the name of BHC Parent or Fiserv Sub any third party consents or other
documents required to be delivered by any third party, to execute and deliver,
in the name and on behalf of BHC Parent or Fiserv Sub, all such deeds, bills
of sale, assignments and assurances and do, in the name and on behalf of BHC
Parent or Fiserv Sub, all such other acts and things necessary, desirable or
proper to vest, perfect or confirm its right, title or interest in, to or
under any of the rights, privileges, immunities, powers, purposes, franchises,
properties or assets of BHC Parent or Fiserv Sub and otherwise to carry out
the purposes of this Agreement.
1.5. Conversion of Fiserv Sub Common Stock, Common Stock and BHC
Options. (a) Each share of Common Stock of Fiserv Sub outstanding immediately
prior to the Merger shall, by virtue of the Merger and without any action on
the part of the holder thereof, be converted into and become one share of
Common Stock of BHC Parent as the Surviving Corporation in the Merger.
(b) Conversion of the Common Stock. Each share of Common Stock outstanding
immediately prior to the Effective Time (except for any share of Common Stock
then held in the treasury of BHC Parent or by any Subsidiary of BHC Parent)
shall, by virtue of the Merger and without any action on the part of the
holder thereof, be converted into the right to receive a number of shares of
Fiserv Common Stock equal to the Conversion Ratio, subject to the provisions
of Section 3.4(b) ("Merger Consideration"). The "Conversion Ratio" shall equal
$33.50 divided by the average of the closing prices as reported in the Wall
Street Journal of the Fiserv Common Stock as reported on the NASDAQ National
Market for the twenty trading day period ending two trading days prior to the
Closing Date.
(c) Shares Held by BHC Parent or a Subsidiary. Each share of Common Stock
that at the Effective Time is held in the treasury of BHC Parent or by any
Subsidiary of BHC Parent shall, by virtue of the Merger and without any action
on the part of BHC Parent or any such Subsidiary, be cancelled and retired and
cease to exist, without any conversion thereof.
(d) No Rights as Stockholders. The holders of certificates representing
shares of Common Stock shall as of the Effective Time cease to have any rights
as stockholders of BHC Parent, and their sole right shall be the right to
receive their share of the Merger Consideration, as determined and paid in the
manner set forth in this Agreement.
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(e) No Fractional Share. Notwithstanding any other provision of this
Agreement, no certificates or scrip representing fractional Merger Shares
shall be issued upon the surrender for exchange of certificates representing
Common Stock, and such fractional share interests will not entitle the owner
thereof to vote or to any rights of a shareholder of Fiserv. In lieu of any
fractional share of Merger Shares being issued to any stockholder, such
fractional share will be rounded down to the nearest whole Merger Share and
cash shall be paid to stockholders of BHC Parent in respect of such fractional
share based on the Merger Consideration.
(f) Options. Each BHC Option outstanding at the Effective Time shall, by
virtue of the Merger and without any action on the part of the holder thereof,
be converted as described in, and in accordance with, Section 3.3(a) of this
Agreement.
1.6. Delivery of the Merger Consideration. At the Closing, Fiserv shall
issue Merger Shares and shall deliver such shares to a bank, trust company or
other Person designated by BHC Parent to act as exchange agent for the Merger
(the "Exchange Agent").
1.7. Exchange of Shares. (a) Surrender of Certificates. At or as soon as
practicable after the Effective Time, each holder of an outstanding
certificate or certificates which prior thereto represented outstanding Common
Stock (the "Certificates") shall, upon surrender to the Exchange Agent of such
Certificate or Certificates and acceptance thereof by the Exchange Agent, be
entitled to the Merger Consideration into which the aggregate number of shares
of Common Stock previously represented by such Certificate or Certificates
surrendered shall have been converted pursuant to this Agreement. The Exchange
Agent shall accept such Certificates upon compliance with such reasonable
terms and conditions as the Exchange Agent may impose to effect an orderly
exchange thereof in accordance with normal exchange practices.
(b) Endorsements of Certificates; Transfer Taxes. If the Merger
Consideration is to be delivered to a Person other than the Person in whose
name the Certificate surrendered in exchange therefor is registered, it shall
be a condition to delivery of such Merger Consideration that the Certificate
so surrendered shall be properly endorsed or otherwise in proper form for
transfer and that the Person requesting such Merger Consideration shall pay
any transfer or other Taxes required by reason of the payment to a Person
other than the registered holder of the Certificate surrendered or establish
to the satisfaction of the Exchange Agent and the Surviving Corporation that
such Tax has been paid or is not applicable.
(c) Status of Certificates. Until surrendered in accordance with the
provisions of this Section 1.7, from and after the Effective Time, each
Certificate (other than Certificates representing former shares of Common
Stock held in the treasury of the Surviving Corporation or by any Subsidiary
of the Surviving Corporation) shall represent for all purposes only the right
to receive a portion of the Merger Consideration as determined and paid in the
manner set forth in this Agreement.
(d) No Further Transfers. After the Effective Time there shall be no
transfers on the stock transfer books of the Surviving Corporation of the
shares of Common Stock that were outstanding immediately prior to the
Effective Time. If, after the Effective Time, Certificates are presented to
the Surviving Corporation, they shall be cancelled and exchanged for the
Merger Consideration as provided in Section 1.7(c).
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ARTICLE II
Representations and Warranties
2.1. Representations and Warranties of BHC Parent. BHC Parent represents and
warrants to Fiserv and Fiserv Sub as follows:
2.1.1. Authorization; No Conflicts; Status of BHC Group,
etc. (a) Authorization, etc. BHC Parent has all requisite corporate power and
authority to enter into this Agreement, to perform its obligations hereunder
and to consummate the transactions contemplated hereby to be consummated by
it. The execution and delivery of this Agreement, and the consummation of the
transactions contemplated hereby, by BHC Parent have been duly authorized by
all requisite corporate action of BHC Parent, except for the approval of the
shareholders of BHC Parent. This Agreement has been duly executed and
delivered by BHC Parent and constitutes the valid and legally binding
obligation of BHC Parent, enforceable against BHC Parent in accordance with
its terms.
(b) No Conflicts. Except as set forth in Schedule 2.1.1(b), the execution
and delivery of this Agreement by BHC Parent and the consummation by BHC
Parent of the transactions contemplated hereby will not contravene, result in
any violation of, loss of rights or default under, constitute an event
creating rights of acceleration, termination, repayment or cancellation under,
entitle any party to receive any payment or benefit pursuant to, or result in
the creation of any Lien upon any of the properties or assets of any member of
the BHC Group under, (i) any provision of the Organizational Documents of any
member of the BHC Group, (ii) any Applicable Law applicable to any member of
the BHC Group or any of their respective properties or (iii) any BHC Contract,
except for, in the case of this clause (iii), any such contraventions,
violations, losses, defaults, accelerations, terminations, repayments,
cancellations or Liens that, individually or in the aggregate, could not
reasonably be expected to have an Adverse Effect on the BHC Group. Except as
set forth in Schedule 2.1.1(b), no Governmental Approval (other than pursuant
to the HSR Act) or other Consent is required to be obtained or made by any
member of the BHC Group in connection with the execution and delivery of this
Agreement by BHC Parent or the consummation by BHC Parent of the transactions
contemplated hereby.
(c) Due Organization, etc. Schedule 2.1.1(c) sets forth a correct and
complete list of each member of the BHC Group, its form and jurisdiction of
organization and each jurisdiction in which such member is qualified to do
business. Each member of the BHC Group is a corporation, partnership or
limited liability company, duly organized, validly existing and in good
standing under the laws of such member's jurisdiction of organization,with the
requisite corporate, partnership or limited liability company power and
authority, as applicable, to carry on its business as now conducted and to own
or lease and to operate its properties as and in the places where such
business is now conducted and such properties are now owned, leased or
operated. Each member of the BHC Group is duly qualified to do business and is
in good standing as a foreign corporation, partnership or limited liability
company, as applicable, in all jurisdictions in which the failure to be so
qualified, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect on the BHC Group.
(d) Organizational Documents, etc. BHC Parent has made available to Fiserv
complete and correct copies of the Organizational Documents, as in effect on
the date hereof, of each member of the BHC Group. Fiserv has been given the
opportunity to inspect the corporate minutes and stock transfer books of BHC
Parent and each direct and indirect Subsidiary of BHC Parent.
2.1.2. Capitalization. (a) BHC Parent. The authorized capital stock of BHC
Parent consists of 33,000,000 shares of Common Stock, of which 6,330,850
shares as of the date hereof are issued and outstanding. All of the
outstanding shares of Common Stock have been duly authorized and validly
issued and are fully paid and nonassessable.
(b) Other Members of the BHC Group. Schedule 2.1.2(b) sets forth a complete
and correct description of the authorized stock or other equity interests of
each member of the BHC Group (other than BHC Parent) and the amount of such
stock or other equity interests that are issued and outstanding as of the date
hereof. All of
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such outstanding shares of stock or other equity interests of each member of
the BHC Group (other than BHC Parent) have been duly authorized and validly
issued and are fully paid and nonassessable, and are owned beneficially and of
record by the member of the BHC Group or other Person specified on such
Schedule 2.1.2(b).
(c) BHC Options. There are 899,750 shares of Common Stock reserved for
issuance under the BHC Stock Plans (excluding shares of Common Stock which
have been issued as of the date hereof upon exercise of options issued under
the BHC Stock Plans), of which 647,750 shares of Common Stock are reserved for
issuance upon exercise of the BHC Options outstanding on the date hereof.
Schedule 2.1.2(c) sets forth a complete and correct list as of the date hereof
of all holders of BHC Options as of the date hereof (collectively, the "BHC
Option Holders"), the exercise price of each BHC Option outstanding as of the
date hereof, the number of shares of Common Stock issuable upon exercise of
each such BHC Option, the portion of each such BHC Option that is vested as of
the date hereof and the expiration date of each such Option. Except as set
forth on Schedule 2.1.2(c), BHC Parent has not agreed to, nor does it have any
commitments to, issue or grant or to cause to be issued or granted any options
or other equity awards relating to any shares of Common Stock. At the
Effective Time, all outstanding BHC Options will be fully exercisable in
accordance with the terms of each BHC Option Plan.
(d) Other Agreements with Respect to Common Stock. There are no preemptive
or similar rights on the part of any Person with respect to the issuance of
any shares of Common Stock of BHC Parent or any other member of the BHC Group.
Except (i) for this Agreement, (ii) in respect of the BHC Options and (iii) as
set forth in Schedule 2.1.2(c) or 2.1.2(d), currently there are no
subscriptions, options, warrants or other similar rights, agreements or
commitments of any kind obligating BHC Parent or any other member of the BHC
Group to issue or sell, or to cause to be issued or sold, or to repurchase or
otherwise acquire, any shares of its Common Stock or any securities
convertible into or exchangeable for, or any options, warrants or other
similar rights relating to, any such shares.
(e) Other Investments. Except as set forth in Schedule 2.1.2(e) and except
for securities of and other interests in members of the BHC Group, investments
in publicly traded securities acquired or held in the ordinary course of
business as trading inventory and cash equivalents, no BHC Company holds any
outstanding securities or other interests in any corporation, partnership,
company, joint venture or other entity.
2.1.3. Financial Information. BHC Parent has delivered to Fiserv the BHC
Financial Statements. The BHC Financial Statements have been prepared in
accordance with generally accepted accounting principles in the United States
applied on a consistent basis ("GAAP") throughout the periods presented in the
BHC Financial Statements. The consolidated balance sheets of BHC Parent and
its Subsidiaries included in BHC Parent Financial Statements present fairly in
all material respects the financial position of BHC Parent and its
Subsidiaries as at the respective dates thereof; and the consolidated
statements of operations, statements of changes in stockholders' equity and
statements of cash flows of BHC Parent and its Subsidiaries included in BHC
Parent Financial Statements present fairly in all material respects the
results of operations, stockholders' equity and cash flows of BHC Parent and
its Subsidiaries for the respective periods indicated.
2.1.4. Undisclosed Liabilities. Except as set forth on Schedule 2.1.4, the
BHC Group is not subject to any obligation or liability of any nature, whether
absolute, accrued, contingent or otherwise and whether due or to become due,
and, to the knowledge of BHC Parent, there is no existing condition, situation
or set of circumstances which would reasonably be expected to result in such
an obligation or liability, other than (i) obligations and liabilities
contemplated by or in connection with this Agreement or the transactions
contemplated hereby, (ii) as and to the extent disclosed or reserved against
in the audited consolidated balance sheet as at December 31, 1996 included in
BHC Parent Financial Statements, (iii) obligations and liabilities incurred
since December 31, 1996 in the ordinary course of business consistent with
past practices and not prohibited by this Agreement and (iv) obligations and
liabilities that could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect on the BHC Group.
2.1.5. Absence of Changes. Since December 31, 1996 through the date hereof,
except (i) as set forth in Schedule 2.1.5, (ii) as reflected or reserved
against in the BHC Financial Statements, or (iii) as contemplated by
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(including,without limitation, Section 3.1.1) or in connection with this
Agreement or the transactions contemplated hereby, the business of the BHC
Group has been conducted in the ordinary course consistent with past practices
and no member of the BHC Group has:
(a) undergone any change in its business, financial condition, results of
operations or properties (other than changes resulting solely from general
economic or political conditions), that, individually or in the aggregate,
has had or could reasonably be expected to have an Adverse Effect on the
BHC Group;
(b) in the case of BHC Parent declared, set aside, made or paid any
dividend or other distribution in respect of its common stock or
repurchased, redeemed or otherwise acquired any shares of its common stock,
except in the ordinary course of business consistent with past practices;
(c) issued or sold any shares of its common stock or any options,
warrants or other similar rights, agreements or commitments of any kind to
purchase any such shares or any securities convertible into or exchangeable
for any such shares, except for issuances of Common Stock of BHC Parent
pursuant to the exercise of BHC Options consistent with past practice of
the BHC Group;
(d) in the case of any member of the BHC Group, incurred, assumed,
guaranteed (including by way of any agreement to "keep well" or of any
similar arrangement) or prepaid any Indebtedness or amended the terms
relating to any Indebtedness (including, without limitation, capital
leases, payments in respect of the deferred purchase price of property,
letters of credit, loan agreements and other agreements relating to the
borrowing of money or extension of credit) or issued or sold any debt
securities, except for any such incurrence, assumption, guarantee or
prepayment of such Indebtedness or amendments of the terms of such
Indebtedness in the ordinary course of business consistent with past
practices in an aggregate amount not exceeding $5,000,000;
(e) sold, transferred, assigned, conveyed, mortgaged, pledged or
otherwise subjected to any Lien any of its properties or assets, tangible
or intangible, except for BHC Permitted Encumbrances or in the ordinary
course of business consistent with past practices;
(f) entered into (i) any agreement or commitment involving more than
$1,000,000 that, pursuant to its terms, is not cancelable without penalty
on 60 days' notice or less or (ii) any other agreement, commitment or other
transaction, other than any agreement, commitment or other transaction
involving an expenditure of not more than $500,000 or series of
expenditures in the aggregate of not more than $1,000,000;
(g) paid (or committed to pay) any bonus or other incentive compensation
to any director, partner, officer or other employee or granted (or
committed to grant) to any director, partner, officer or other employee any
other increase in compensation, except for bonuses payable pursuant to any
plan listed on Schedule 2.1.16(a), base salary or wage increases, in each
case in the ordinary course of business consistent with past practices or
pursuant to the terms of any written agreement or commitment existing at
December 31, 1996;
(h) entered into, adopted or amended (or committed to enter into, adopt
or amend) in any material respect any employment, retention, change in
control, collective bargaining, deferred compensation, retirement, bonus,
profit-sharing, stock option or other equity, pension or welfare plan,
contract or other arrangement with an independent contractor or agreement
maintained for the benefit of any director, partner, officer, or other
employee;
(i) suffered any strike or other labor dispute or controversies,
including unresolved grievances, arbitrations or unfair labor practice
charges that has had or could reasonably be expected to have an Adverse
Effect on the BHC Group;
(j) amended its certificate of incorporation or by-laws or any other
Organizational Documents;
(k) granted any rights or licenses under any of its trademarks or trade
names or other BHC Intellectual Property or entered into any licensing or
similar agreements or arrangements other than in the ordinary course of
business consistent with past practices;
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(l) made any material changes in its general policies or practices
relating to selling practices, discounts or other material terms of sale or
accounting therefor other than in the ordinary course of business
consistent with past practices;
(m) changed in any material respect its accounting practices, policies or
principles, other than any such changes as may be required under GAAP or
other generally accepted accounting principles of the applicable
jurisdiction;
(n) suffered any damage, destruction or other casualty loss (whether or
not covered by insurance) affecting its properties or assets which,
individually or in the aggregate, could reasonably be expected to have an
Adverse Effect on the BHC Group; or
(o) taken any action or omitted to take any action that would result in
the occurrence of any of the foregoing.
2.1.6. Taxes. (a) Filing of BHC Tax Returns and Payment of Taxes. Except as
set forth on Schedule 2.1.6(a), all material BHC Tax Returns required to be
filed on or before the date hereof have been filed in accordance with
Applicable Law and all material BHC Tax Returns required to be filed on or
before the Closing Date will have been filed by the Closing Date in accordance
with Applicable Law or, in each case, the time for filing such BHC Tax Returns
shall have been validly extended as set forth in Schedule 2.1.6(b). Except for
Taxes set forth on Schedule 2.1.6(a) (which are being contested in good faith
and by appropriate proceedings or which can be paid without interest, addition
to tax or penalty), the following Taxes (collectively, without regard to
materiality "BHC Taxes")) have (or, in the case of Taxes that become due after
the date hereof and on or before the Closing Date, by the Closing Date will
have) been duly paid: (i) all Taxes shown to be due on such BHC Tax Returns
and (ii) all material Taxes due and payable on or before the date hereof and
all material Taxes due and payable on or before the Closing Date that are or
maybe come payable by any member of the BHC Group or chargeable as a Lien upon
the assets thereof (whether or not shown on any BHC Tax Return). Except as set
forth on Schedule 2.1.6(a), all material BHC Employment and Withholding Taxes
required to be withheld and paid on or before the date hereof, and all
material BHC Employment and Withholding Taxes required to be withheld and paid
on or before the Closing Date, have (or, in the case of such BHC Employment
and Withholding Taxes that are required to be withheld and paid after the date
hereof and on or before the Closing Date, by the Closing Date will have) been
duly paid to the proper Governmental Authority (and in the case of BHC
Employment and Withholding Taxes required to be withheld on or before the
Closing Date and paid after the Closing Date, will be properly set aside in
accounts for such purpose).
(b) Extensions, etc. Except as set forth on Schedule 2.1.6(b), (i) no
written agreement or document extending or waiving, or having the effect of
extending or waiving, the period of assessment or collection of any BHC Taxes
or BHC Employment and Withholding Taxes, and no power of attorney with respect
to any such Taxes, has been executed or filed with the IRS or any other taxing
authority which extension, waiver, or power is currently in force; (ii) no
member of the BHC Group has requested any extension of time within which to
file any BHC Tax Return and has not yet filed such BHC Tax Return; and (iii)
there are no requests for rulings in respect of any BHC Taxes or BHC
Employment and Withholding Taxes pending between any member of the BHC Group
and any Governmental Authority.
(c) Tax Filing Groups; Income Tax Jurisdictions. Except as set forth on
Schedule 2.1.6(c), no member of the BHC Group (A) is or has been at any time a
member of any affiliated, consolidated, combined or unitary group for Tax
purposes or (B) has any liability for the Taxes of any person (other than
another member of the BHC Group) under section 1.1502-6 of the United States
Treasury regulations, or any similar provision of state, local or foreign law,
or as a transferee, successor, indemnitor or guarantor, by contract or
otherwise. Set forth on Schedule 2.1.6(c) for each member of the BHC Group are
all countries, states, provinces, cities or other jurisdictions in which
Income Tax is properly payable by a member of the BHC Group (assuming it had a
sufficient tax base for such Income Tax).
(d) Copies of BHC Tax Returns; Audits; etc. BHC Parent has (or by the
Closing Date will have) made available to Fiserv complete and accurate copies
of all BHC Tax Returns as filed and, if applicable, as amended,
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with respect to all open Tax periods that have been filed or will be required
to be filed (after giving effect to all valid extensions of time for filing)
on or before the Closing Date. Except as set forth on Schedule 2.1.6(d), (i)
no BHC Taxes or BHC Employment and Withholding Taxes have been asserted in
writing by any Governmental Authority to be due in respect of any open Tax
period, (ii) no revenue agent's report or written assessment for Taxes has
been issued by any Governmental Authority in the course of any audit with
respect to BHC Taxes or BHC Employment and Withholding Taxes for any open Tax
period, (iii) no issue has been raised by any Governmental Authority in
writing (in a writing that has been received by any member of the BHC Group)
in the course of any audit that has not been completed with respect to BHC
Taxes or BHC Employment and Withholding Taxes and (iv) to the knowledge of BHC
Parent, no such assertion, assessment or issue has been raised or is being
contemplated by any Governmental Authority at the date hereof. Except as set
forth on Schedule 2.1.6(d), all BHC Tax Returns filed with respect to Tax
years of each member of the BHC Group through the Tax year ended December 31,
1992, have been closed or are BHC Tax Returns with respect to which the
applicable period for assessment under Applicable Law, after giving effect to
extensions or waivers, has expired. The IRS is conducting an audit of the BHC
Tax Return with respect to United States federal income Taxes for 1994. Except
as set forth on Schedule 2.1.6(d), there is no judicial or administrative
claim, audit, action, suit, proceeding or, to the knowledge of BHC Parent,
investigation now pending or threatened against or with respect to any member
of the BHC Group in respect of any BHC Tax, BHC Employment and Withholding Tax
or any Tax Asset of any member of the BHC Group. Except as set forth on
Schedule 2.1.6(d), there is no reasonable basis for any deficiency, claim or
adjustment of additional BHC Taxes or BHC Employment and Withholding Taxes of
which BHC Parent is aware. Except as set forth on Schedule 2.1.6(d), there are
no Liens for Taxes upon any assets of any of the members of the BHC Group
except Liens for current Taxes (i) not yet due or (ii) being contested in good
faith and by appropriate proceedings and for which adequate reserves have been
established on the BHC Financial Statements.
(e) Section 1445(a) of the Code. Neither Fiserv Sub nor Fiserv will be
required to deduct and withhold any amount pursuant to Section 1445(a) of the
Code upon the payment of the Merger Consideration pursuant to this Agreement.
(f) Tax Sharing Agreements. Except as set forth on Schedule 2.1.6(f), no
member of the BHC Group is a party to or bound by or has any contractual
obligation to pay any amounts under any Tax sharing agreement or arrangement.
(g) "Substantially All" Requirement. Except as set forth on Schedule
2.1.6(g), BHC Parent has made no distributions to stockholders of BHC Parent,
other than regular, normal dividends paid in the ordinary course of business.
Following the Merger, the Surviving Corporation will hold at least 90 percent
of the fair market value of BHC Parent's net assets and at least 70 percent of
the fair market value of BHC Parent's gross assets and at least 90 percent of
the fair market value of Fiserv Sub's net assets and at least 70 percent of
the fair market value of Fiserv Sub's gross assets held immediately prior to
the Merger. For purposes of this representation, the assets of BHC Parent
shall be valued immediately prior to the Effective Time, and any assets used
by BHC Parent or Fiserv Sub to pay transaction expenses, to pay cash or other
property to any stockholder of BHC Parent or Fiserv Sub in connection with the
Merger, to pay cash or other property to redeem any stock of BHC Parent or
Fiserv Sub, or to pay prior to the Effective Time any dividend other than a
regular, normal dividend in the ordinary course of business, and any amounts
set forth on Schedule 2.1.6(g), shall be treated as assets held by BHC Parent
or Fiserv Sub, respectively, immediately prior to the Effective Time.
(h) Section 481 Adjustment. Except as set forth on Schedule 2.1.6(h), no
member of the BHC Group is or will be required to include any adjustment in
taxable income for any Post-Closing Tax Period under section 481(c) of the
Code (or any similar provision of the Tax laws of any jurisdiction) as a
result of a change in method of accounting for a Pre-Closing Tax Period or
pursuant to the provisions of any agreement entered into with any Governmental
Authority on or before the Closing Date with regard to the Tax liability of
any member of the BHC Group for any Pre-Closing Tax Period.
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(i) Real Property. Except as set forth on Schedule 2.1.6(i), no member of
the BHC Group owns any interest in real property in any jurisdiction in which
a Tax is imposed on the transfer of a controlling interest in an entity that
owns any interest in real property or on a transfer of an interest in real
property in a reverse triangular merger for stock of the parent of the non-
surviving company and cash.
(j) Affiliated Group Items. Except as set forth on Schedule 2.1.6(j), no
member of the BHC Group will have immediately prior to the Effective Time (i)
any excess loss account within the meaning of section 1.1502-19 of the United
States Treasury regulations; (ii) any deferred gain or loss arising from
deferred intercompany transactions entered into while any member of the BHC
Group was a member of the affiliated group of which BHC Parent is the common
parent as described under section 1.1502-13 of the United States Treasury
regulations (as in effect before the adoption of Treasury Decision 8597);
(iii) any deferred gain or loss with respect to stock or obligations of any
other member of the affiliated group of which BHC Parent is the common parent
as described under section 1.1502-14 (as in effect before the adoption of
Treasury Decision 8597) of the United States Treasury regulations and any
intercompany items of gain or loss that have not been taken into account as
described under section 1.1502-13 of the United States Treasury regulations
(as adopted by Treasury Decision 8597); and (iv) any similar item under any
similar provision of state or local law.
(k) No Investment Company; No Bankruptcy. BHC Parent is not an investment
company as defined in sections 368(a)(2)(F) (iii) and (iv) of the Code. BHC
Parent is not under the jurisdiction of a court in a Title 11 or similar case
within the meaning of section 368(a)(3)(A) of the Code.
(l) Other Matters. Except as set forth on Schedule 2.1.6(m), none of the
members of the BHC Group is a party to any agreement, contract or arrangement
or has adopted any plan that could result in the payment of any amount or the
vesting of any options upon a change of control of BHC Parent. BHC Parent is
not a "consenting corporation" within the meaning of Section 341(f) of the
Code. None of the assets of any member of the BHC Group is required to be
treated as being owned by another person pursuant to the "safe harbor" leasing
provisions of Section 168(f)(8) of the Code, as in effect prior to the repeal
of said leasing provisions, or treated as "tax-exempt use property" within the
meaning of Section 168(h) of the Code. No member of the BHC Group has made or
been required to make an election under Section 338 of the Code for any
Taxable year beginning after December 31, 1992.
(m) Corporation as Defined. Each member of the BHC Group is a "corporation"
within the meaning of Section 7701(a)(3) of the Code.
2.1.7. Properties and Assets. Schedule 2.1.7 sets forth a complete and
correct list, as of the date hereof, of all real property leased by any member
of the BHC Group, including the names of each of the parties to such lease and
the location of the applicable property. None of the members of the BHC Group
owns any real property. Each member of the BHC Group has valid title to all
material personal property owned by it, and valid leasehold interests in all
real and material personal property leased by it, in each case free and clear
of all Liens, except (i) Liens specified in Schedule 2.1.7 or reflected in the
BHC Financial Statements, (ii) Liens for Taxes not yet delinquent or which are
being contested in good faith by appropriate proceedings if adequate reserves
with respect thereto are maintained on its books in accordance with GAAP,
(iii) statutory Liens incurred in the ordinary course of business consistent
with past practices that have not had and could not reasonably be expected to
have a Material Adverse Effect on the BHC Group and (iv) Liens which do not
materially detract from the value or materially interfere with the use of the
properties affected thereby (the exceptions described in the foregoing clauses
(i), (ii), (iii) and (iv) being referred to collectively as "BHC Permitted
Encumbrances"). Schedule 2.1.7 sets forth a list of each material real
property lease under which any member of the BHC Group is a lessee as to which
the consummation by BHC Parent of the transactions contemplated hereby would
result in a violation of, loss of rights or default under or constitute an
event creating rights of acceleration, termination or cancellation under such
lease.
2.1.8. Contracts. (a) Schedule of Contracts, etc. Schedule 2.1.8(a) sets
forth a correct and complete list, as of the date hereof, of all BHC
Contracts. The term "BHC Contracts" means all agreements, contracts,
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licenses and commitments, including material oral agreements, of the following
types to which any member of the BHC Group is a party or by which any member
of the BHC Group or its respective properties is bound and which is currently
in effect, as amended, supplemented, waived or otherwise modified as of the
date hereof: (i) material contracts for the performance of clearing services;
(ii) employment, retention, material independent contractor arrangements,
change in control and collective bargaining agreements, if any, with any
directors, officers, other employees, or trade unions, of any member of the
BHC Group; (iii) mortgages, indentures, security agreements relating to
indebtedness for borrowed money, letters of credit, promissory notes, loan
agreements and other material agreements, guarantees and instruments relating
to the borrowing of money or extension of credit; (iv) material licenses and
other similar material agreements involving Intellectual Property rights; (v)
material joint venture, partnership and similar agreements; (vi) material
stock purchase agreements (other than any such agreements pursuant to which
BHC Parent issued Common Stock to any Person), material asset purchase
agreements and other material acquisition or divestiture agreements; (vii)
personal property leases providing for annual rentals of $2,000,000 or more;
(viii) agreements, contracts and commitments for the purchase or sale of
supplies, services, equipment or other assets that provide for annual payments
by the BHC Group of $500,000 or more; (ix) any other agreements, contracts,
licenses or commitments that are material to the business, financial
condition, results of operations or properties of the BHC Group, taken as a
whole; and (x) any guaranty (including by way of any agreement to "keep well"
or any similar arrangements) of any of the foregoing. No member of the BHC
Group has made any loan which is secured by a mortgage or services any
mortgages or otherwise is engaged in mortgage banking activities. BHC Parent
has made available to Fiserv for inspection complete and correct copies of all
BHC Contracts, including a description of any material oral agreements.
(b) No Defaults, etc. Except as set forth in Schedule 2.1.8(b), excluding
any failure to obtain Consents with respect to the BHC Contracts listed in
Schedule 2.1.1(b) and further excluding those matters which could not,
individually or in the aggregate, reasonably be expected to have an Adverse
Effect on the BHC Group, (i) each BHC Contract is in full force and effect in
all material respects, and (ii) there does not exist under any material BHC
Contract any material event of default, or any event or condition that, after
notice or lapse of time or both, would constitute a material event of default,
on the part of any member of the BHC Group or, to the knowledge of BHC Parent,
on the part of any other party to any material BHC Contract. Except as
disclosed in Schedule 2.1.8(b), no member of the BHC Group is subject to any
contract, agreement, license or commitment materially restricting or limiting
the type or scope of business or operations that it may conduct now or
immediately after the Effective Time.
2.1.9. Intellectual Property. (a) Schedule of Intellectual
Property. Schedule 2.1.9(a) sets forth a correct and complete list of all of
the material trade or service marks and all other material Intellectual
Property (other than off-the-shelf software programs that have not been
customized for use by any member of the BHC Group) used in the business and
operations of the BHC Group as of the date hereof (the "BHC Intellectual
Property") and sets forth the owner and nature of the interest of the BHC
Group therein. All of the material Intellectual Property owned by any member
of the BHC Group and used in connection with the business is owned free and
clear of any Liens, except as set forth on Schedule 2.1.9(a). Except as set
forth in Schedule 2.1.9(a), the BHC Group has the legal right to use BHC
Intellectual Property in connection with the business as currently conducted
by the BHC Group and, except as set forth on Schedule 2.1.1(b), immediately
after the Effective Time, the Surviving Corporation or its Subsidiaries will
have such right to the same extent and on the same terms as the BHC Group was
entitled to use BHC Intellectual Property immediately prior to the Effective
Time.
(b) No Infringement, etc. The business and operations of the BHC Group as
currently conducted do not infringe or otherwise conflict with any rights of
any Person in respect of any Intellectual Property, except (i) as disclosed in
writing to Fiserv on or prior to the date hereof or (ii) to the extent that
any infringement or conflict could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on the BHC Group.
None of the BHC Intellectual Property owned by any member of the BHC Group is
being materially infringed, nor is the BHC Intellectual Property being
materially used or available for use by any Person other
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than a member of the BHC Group, except as set forth in Schedule 2.1.9(a) or
(b). No BHC Intellectual Property owned by any member of the BHC Group is
subject to any outstanding judgment, injunction, order, decree or agreement
restricting the use thereof by any member of the BHC Group with respect to its
business or restricting the licensing thereof by such member to any Person.
Except as set forth on Schedule 2.1.9(b), no member of the BHC Group has
entered into any agreement to indemnify any other Person against any charge of
infringement of BHC Intellectual Property, other than pursuant to any such
agreements entered into in connection with the use of commercially available
information systems applications. Except as disclosed in Schedule 2.1.9(a) or
(b), the material Intellectual Property owned by any member of the BHC Group
has been duly registered with, filed in or issued by, as the case may be, the
United States Patent and Trademark Office, the United States Copyright Office
or other filing offices, domestic or foreign, to the extent necessary or
desirable to ensure full protection under any Applicable Law, and such
registrations, filings, issuances and other actions remain in full force and
effect. Except as set forth in Schedule 2.1.9(b) or to the extent disclosed in
writing on or prior to the date hereof, each member of the BHC Group has taken
all reasonably necessary actions to ensure full protection of the material
Intellectual Property (including maintaining the secrecy of all confidential
Intellectual Property and, to the extent legally required or customary to
protect such Intellectual Property (other than software), all necessary and
appropriate standards of quality control) under any Applicable Law.
2.1.10. Insurance. Schedule 2.1.10 sets forth a correct and complete list of
all material insurance policies and fidelity bonds maintained on the date
hereof by or for the benefit of the members of the BHC Group. BHC Parent has
made available to Fiserv complete and correct copies of all such policies and
bonds, together with all riders and amendments thereto as of the date hereof.
As of the date hereof, such policies and bonds are in full force and effect,
and all premiums due thereon have been paid. The members of the BHC Group have
complied in all material respects with the terms and provisions of such
policies and bonds. Except as set forth on Schedule 2.1.10, there is no claim
in excess of $100,000 by any member of the BHC Group pending as of the date
hereof 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.
Such policies and bonds (or other policies and bonds providing substantially
similar insurance coverage) have been in effect since December 31, 1996 and
are of the type and in amounts customarily carried by Persons conducting
businesses similar to the businesses of the BHC Group. If so requested by
Fiserv, the BHC Companies will have their insurance broker(s) notify the
underwriters of such policies and bonds of the transactions contemplated by
this Agreement and advise such insurance broker(s) to maintain all such
policies and bonds in accordance with their terms until further notice.
2.1.11. Litigation. Except as set forth in Schedule 2.1.11, there is no
judicial or administrative action, suit, investigation, inquiry or proceeding
pending or, to the knowledge of BHC Parent, threatened, or any reasonable
basis therefor, that (a) individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect on the BHC Group or result in any
liability on the part of the BHC Group in an amount in excess of $1,000,000
individually or $3,000,000 in the aggregate or (b) questions the validity of
this Agreement or of any action taken or to be taken by any member of the BHC
Group or any stockholder of BHC Parent in connection with this Agreement or
the transactions contemplated thereby.
2.1.12. Compliance with Laws and Other Instruments; Governmental Approvals.
(a) Compliance with Laws, etc. Except as disclosed in Schedule 2.1.12(a), no
member of the BHC Group is in material violation of or material default under,
or has at any time since December 31, 1996 materially violated or been in
material default under, (i) any Applicable Law applicable to it or any of its
properties or business or (ii) any provision of its Organizational Documents.
Schedule 2.1.12(a) sets forth a correct and complete list of all consent
decrees or other similar agreements entered into by any member of the BHC
Group with any Governmental Authority currently in effect. No Governmental
Authority has instituted, implemented, taken or threatened to take any other
action the effect of which, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect on the BHC Group. Except as set
forth on Schedule 2.1.12(a), all members of the BHC Group that are required to
be licensed by the insurance department of any jurisdiction are duly licensed
in such jurisdiction. No member of the BHC Group has received written notice
of any pending
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suit, proceeding or investigation concerning the failure of any such member to
obtain any insurance license, or concerning the cancellation, suspension,
revocation, limitation or nonrenewal of any insurance license.
(b) Governmental Approvals. Except as disclosed in Schedule 2.1.12(b), all
material Governmental Approvals necessary for the conduct of the business and
operations of each member of the BHC Group have been duly obtained and are in
full force and effect. There are no proceedings pending or, to the knowledge
of BHC Parent, threatened that would reasonably be expected to result in the
revocation, cancellation or suspension, or any materially adverse
modification, of any such Governmental Approval, and except with respect to
Governmental Approvals set forth on Schedule 2.1.1(b), the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby will not result in any such revocation, cancellation,
suspension or modification.
(c) Filings. Since December 31, 1994, each member of the BHC Group has filed
all material registrations, reports, statements, notices and other material
filings required to be filed with the Commission, and any other Governmental
Authority by such member of the BHC Group, to the extent applicable, including
all required amendments or supplements to any of the above, except to the
extent that failure to file could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on the BHC Group (the
"BHC Filings"). The BHC Filings complied in all material respects, where
applicable, with the requirements of the Securities Act, the Exchange Act and
any other Governmental Authority. As of their respective dates, each of the
BHC Filings constituting prospectuses, annual reports on Form 10-K and proxy
statements did not contain any untrue statement of a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. BHC Parent has made
available to Fiserv complete and correct copies of (i) all BHC Filings made
within the past two years (including but not limited to all filings on Form
BD), (ii) all audit reports received by any member of the BHC Group from the
Commission or any other Governmental Authority and all written responses
thereto made by any such member during the past two years, (iii) copies of all
inspection reports provided to any member of the BHC Group by the Commission,
any state regulatory authority or any other Governmental Authority during the
past two years and (iv) all correspondence relating to any inquiry or
investigation provided to any BHC Group by the Commission, any state
regulatory authority or any other Governmental Authority during the past two
years.
2.1.13. Affiliate Transactions. Schedule 2.1.13 sets forth a correct and
complete list of all agreements, arrangements or other commitments, other than
brokerage accounts, in effect as of December 31, 1996 between any member of
the BHC Group, on the one hand, and any officer, director or shareholder of
any member of the BHC Group on the other hand, other than compensation or
benefit agreements, arrangements and commitments set forth on Schedule 2.1.16.
Since December 31, 1996, except as set forth in Schedule 2.1.13, no member of
the BHC Group has entered into any agreement, arrangement or other commitment
or transaction with any officer, director or shareholder of any member of the
BHC Group.
2.1.14. Government Regulation.
(a) Broker-Dealers. Each of BHC Securities, Inc., BHCM Inc. TradeStar
Investments, Inc. and BHC Trading Corp. (collectively, the "BHC Registered
Broker-Dealers") is, and at all times required by the Exchange Act during the
past five years (or such shorter period as such entity has been in existence)
has been, a broker-dealer duly registered under the Exchange Act and, to the
extent required, the Municipal Securities Rulemaking Board. Each BHC
Registered Broker-Dealer is, other than BHC Trading Corp., a member firm in
good standing of the NASD. BHC Trading Corp. is a member firm in good standing
of the Philadelphia Stock Exchange. Except for any BHC Registered Broker-
Dealer set forth on Schedule 2.1.14(a), each of the BHC Registered Broker-
Dealers is, and at all times required by Applicable Law (other than the
Exchange Act) during the past two years has been, duly registered, licensed or
qualified as a broker-dealer in each state where the conduct of its business
required such registration, licensing or qualification, except for any such
failure to be so registered, licensed or qualified that could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect on the BHC Group. Each such United States federal and state
registration, license or qualification, as of the date hereof, is listed in
Schedule 2.1.14(a) and is in full force and effect. Except for any
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BHC Registered Broker-Dealer set forth on Schedule 2.1.14(a), no member of the
BHC Group other than the BHC Registered Broker-Dealers is or has been during
the past three years required to be registered, licensed or qualified as a
broker-dealer under the Exchange Act, or subject to any material liability or
disability by reason of any failure to be so registered, licensed or
qualified, except for any such failure that could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on the BHC
Group.
(b) Trust Companies. No member of the BHC Group is or has been during the
past two years required to be registered, licensed or qualified as a trust
company under any Applicable Law, or subject to any material liability or
disability by reason of any failure to be so registered, licensed or
qualified, except for any such failure that could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on the BHC
Group.
(c) Other Entities. The members of the BHC Group and each of their officers
or employees which are or who are required to be registered as a registered
representative, an investment advisor representative, insurance agent or a
sales person with the Commission, or an equivalent person with the securities
or insurance commission of any other Governmental Authority, are duly
registered as such and such registration is in full force and effect, except
where the failure to be so registered or to have such registration in full
force and effect could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect on the BHC Group.
2.1.15. Labor Matters, etc. No member of the BHC Group is a party to or
bound by any collective bargaining or other labor agreement. Each member of
the BHC Group is currently in compliance with and for the past four years has
materially complied with all applicable provisions of United States federal,
state and local laws pertaining to the employment or termination of employment
of their respective employees, except for any failures to comply that,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect on the BHC Group.
2.1.16. ERISA. (a) Schedule of Plans, etc. Schedule 2.1.16(a) sets forth a
correct and complete list of each written "employee benefit plan," within the
meaning of section 3(3) of ERISA, and each written bonus, incentive or
deferred compensation, stock option or other equity, worker's compensation,
retention, change in control or other employee or retiree compensation or
benefit plan, program or arrangement that is maintained by any member of the
BHC Group or any ERISA Affiliate thereof or to which any member of the BHC
Group or any such ERISA Affiliate contributes or is obligated to contribute or
under which any member of the BHC Group may otherwise have any material
liability (collectively, the "BHC Plans"). BHC Parent has made available to
Fiserv correct and complete copies of all written BHC Plans, all related
trusts or other funding agreements, and amendments to the BHC Plans, the most
recent IRS Form 5500 filed in respect of any such BHC Plan and any material
employee communications with respect to any and all BHC Plans (including, but
not limited to, summary plan descriptions and summaries of material
modifications), and the most recent actuarial valuation prepared for any BHC
Plan. Except as disclosed on Schedule 2.1.16(a), each BHC Plan intended to be
qualified under section 401(a) of the Code has received a favorable
determination letter from the IRS as to its qualification under the Code and,
to the knowledge of BHC Parent, (x) no amendment has been made to any such BHC
Plan since the date of its most recent determination letter that would
reasonably be expected to result in the disqualification of such BHC Plan and
(y) no other event has occurred with respect to any such BHC Plan which would
reasonably be expected to adversely affect the qualification of such BHC Plan.
(b) No Minimum BHC Funding Standards, etc. Except as disclosed on Schedule
2.1.16(b), no BHC Plan is subject to the minimum funding standards of Section
302 of ERISA or section 412 of the Code. No BHC Plan is a multi-employer plan
(as defined in section 3(37) of ERISA) or a multiple employer plan and no BHC
Plan is maintained in connection with any trust described in Section 501(c)(9)
of the Code. No material liability has been incurred pursuant to the
provisions of Title I or IV of ERISA by any member of the BHC Group or any
ERISA Affiliate thereof and no condition or event exists or has occurred which
would reasonably be expected to result in any such material liability to any
such Person.
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(c) Operation of the BHC Plans, etc. Each of the BHC Plans has been operated
and administered in compliance with its terms and all Applicable Law,
including but not limited to ERISA and the Code, except for any failures to
comply that, individually or in the aggregate, could not reasonably be
expected to result in material liability of any member of the BHC Group. There
are no material claims pending or, to the knowledge of BHC Parent, threatened
by or on behalf of any employee of any member of the BHC Group involving any
BHC Plan or its assets (other than routine claims for benefits under the terms
of any such BHC Plan). All contributions required to have been made to any
plan subject to Title IV of ERISA by any member of the BHC Group or any ERISA
Affiliate thereof pursuant to Applicable Law (including, without limitation,
ERISA and the Code) have been made within the time required by such Applicable
Law.
(d) No Prohibited Transactions. Neither any member of the BHC Group nor any
ERISA Affiliate has any liability with respect to any transaction including an
BHC Plan in violation of section 406 of ERISA or any "prohibited transaction,"
as defined in section 4975(c)(1) of the Code, for which no exemption exists
under section 408 of ERISA or section 4975(c)(2) or (d) of the Code, except
for any such liability that, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect on the BHC Group.
Neither any member of the BHC Group nor any ERISA Affiliate has participated
in a violation of Part 4 of Title I, Subtitle B of ERISA by any plan fiduciary
of any BHC Plan and has any unpaid civil liability under section 502(1) of
ERISA, except for any such violation or liability that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect
on the BHC Group. There are no suits, investigations or other proceedings
pending or threatened in writing by any Governmental Authority of or against
any BHC Plan, the trustee of any assets held thereunder or BHC Parent,
relating to the BHC Plans.
(e) Market Value, etc. The market value of assets under each BHC Plan that
is a BHC Pension Plan, as hereinafter defined, is not materially less than the
present value of all benefit liabilities within the meaning of section
4001(a)(16) of ERISA, as determined in accordance with Pension Benefit
Guaranty Corporation ("PBGC") methods, factors and assumptions applicable to a
pension plan terminating on the last day of the plan year immediately
preceding the date of this Agreement. For purposes of this Section 2.1.16 "BHC
Pension Plan" shall mean a funded employee pension benefit plan, as defined in
section 3(2) of ERISA, established or maintained by any member of the BHC
Group or any ERISA Affiliate that is not an individual account plan within the
meaning of section 3(34) of ERISA.
(f) Reportable Event. No BHC Plan that is a BHC Pension Plan has been the
subject of a Reportable Event as to which notices would be required to be
filed with the PBGC.
(g) No Increase in Expense. There has been no amendment to, written
interpretation or announcement (whether or not written) or change in employee
participating or coverage under, any BHC Plan that would increase materially
the expense of maintaining such BHC Plan above the level of expense incurred
in respect of such BHC Plan for the most recent year.
(h) No Liability, etc. No liability has been incurred by BHC Parent or an
ERISA Affiliate for any tax, penalty or other liability with respect to any
BHC Plan.
(i) Required Contributions. BHC has made all required contributions under
each BHC Plan that is a BHC Pension Plan on a timely basis or, if not due yet,
adequate accruals therefor have been provided for in the financial statements.
No BHC Plan that is a BHC Pension Plan has incurred any "accumulated funding
deficiency" within the meaning of section 302 of ERISA or section 412 of the
Code and no BHC Plan that is a BHC Pension Plan has provided for or received a
waiver of the minimum funding standards imposed by section 412 of the Code.
(j) No Termination. There has been no termination or partial termination, as
defined in section 411(d) of the Code and the regulations thereunder, of any
BHC Plan that is a BHC Pension Plan.
(k) Welfare Plans. The Welfare Plans that are group health plans (as defined
for the purposes of section 4980B of the Code and Part 6 of Subtitle B of
title I of ERISA and all regulations thereunder ("COBRA"))
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have complied with the requirements of COBRA to provide healthcare
continuation coverage, to qualified beneficiaries who have elected, or may
elect to have, such coverage, except for any violation that, individually or
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect on the BHC Group. The BHC Group, or its agents who administer any of
the Welfare Plans, have complied with the notification and written notice
requirements of COBRA, except for any violation that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect
on the BHC Group.
2.1.17. Brokers, Finders, etc. All negotiations relating to this Agreement
and the transactions contemplated hereby have been carried on without the
participation of any Person acting on behalf of BHC Parent in such manner as
to give rise to any valid claim against any member of the BHC Group or Fiserv
Sub for any brokerage or finder's commission, fee or similar compensation,
other than as set forth in Schedule 2.1.17, and by Alex. Brown & Sons, Inc.
whose fee for services provided in respect of this Agreement and the
transactions contemplated hereby shall be paid by BHC Parent.
2.1.18. Environmental Matters. Except as set forth in Schedule 2.1.18, and
except for those matters which could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on the BHC Group:
(a) The BHC Group and the BHC Facilities are and have been in compliance
with all Environmental Laws;
(b) No events, facts or conditions will prevent, hinder or limit
continued compliance by the BHC Group and the BHC Facilities with
applicable Environmental Laws, and no material expenditures or commitments
by the BHC Group are planned or necessary by the BHC Group to maintain
continued compliance by the BHC Group and the BHC Facilities as of the date
of this Agreement or beyond the Closing Date;
(c) The BHC Group has obtained all material permits, licenses and
authorizations required pursuant to applicable Environmental Laws to carry
on its business as now conducted; all such permits are in full force and
effect and are not subject to any appeals or to any unsatisfied conditions
which are required to be satisfied by the Closing Date; and no such permits
are subject to any pending or threatened modification, suspension,
revocation, rescission or cancellation;
(d) The BHC Group is not liable under any applicable Environmental Law
with respect to the release, threatened release, or presence of any
Hazardous Substance;
(e) No Hazardous Substance which may require response or corrective
action or remediation under any Environmental Law is present at,
threatening, or emanating from any property presently owned or operated by
the BHC Group, or was present at or emanating from any other property when
previously owned or operated by the BHC Group;
(f) The BHC Group is not subject to any pending or threatened claim, nor
obliged to comply with any judgment, order, ruling, settlement, or
agreement arising under any Environmental Law;
(g) The BHC Group has not received any notice that it is a potentially
liable party, that it is required to provide information, or that it or any
of the BHC Facilities is subject to an investigation in connection with any
applicable Environmental Law; and
(h) The BHC Group has not entered into any negotiations or agreements
either relating to any response or corrective action or remediation
relating to liabilities or potential liabilities arising under any
Environmental Law or providing any indemnification or renouncing
indemnification claims for any liabilities arising under any Environmental
Law.
2.1.19. Pooling of Interests. To the best of BHC Parent's knowledge, after
due consultation with its accountants, except as set forth on Schedule 2.1.19,
there is no fact, event or condition on the date hereof that could reasonably
be expected to prevent the Pooling Condition from being satisfied under the
terms and conditions of the Agreement.
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2.1.20. Disclosure. There is no fact, event or condition known to BHC Parent
that since December 31, 1996 through the date hereof, has had, or in the
future may have (so far as it can now reasonably foresee), individually or in
the aggregate, without regard to the transactions contemplated by this
Agreement, a Material Adverse Effect on the BHC Group that has not been
disclosed in writing to Fiserv on the date hereof by or on behalf of BHC
Parent specifically for use in connection with the transactions contemplated
by this Agreement. At the date hereof, to the best of BHC's knowledge, the
transaction contemplated by this Agreement will not have a Material Adverse
Effect on BHC Parent or any member of the BHC Group.
2.1.21. Proxy Statement/Prospectus. On the date on which the Proxy
Statement/Prospectus is mailed to the holders of Common Stock, on the date the
stockholders meeting of BHC Parent is held and on the Closing Date, such Proxy
Statement/Prospectus will comply in all material respects with the
requirements of the Securities Act, the rules and regulations of the
Commission thereunder and all other applicable requirements and will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances under which they were made;
provided, however, that the foregoing representation and warranty shall not
apply to information concerning Fiserv Group furnished by Fiserv or any member
of the Fiserv Group in writing expressly for use in the Proxy
Statement/Prospectus.
2.2. Representations and Warranties of Fiserv and Fiserv Sub. Fiserv and
Fiserv Sub represent and warrant to BHC Parent as follows:
2.2.1. Authorization; No Conflicts; Status of Fiserv Group,
etc. (a) Authorization, etc. Each of Fiserv and Fiserv Sub has all requisite
corporate power and authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby
to be consummated by it. The execution and delivery of this Agreement, and the
consummation of the transactions contemplated hereby, by Fiserv and Fiserv Sub
have been duly authorized by all requisite corporate action of Fiserv and
Fiserv Sub. This Agreement has been duly executed and delivered by each of
Fiserv and Fiserv Sub and constitutes the valid and legally binding obligation
of Fiserv and Fiserv Sub, enforceable against each of them in accordance with
its terms.
(b) No Conflicts. Except as set forth in Schedule 2.2.1(b), the execution
and delivery of this Agreement by Fiserv and Fiserv Sub and the consummation
of the transactions contemplated hereby will not contravene, result in any
violation of, loss of rights or default under, constitute an event creating
rights of acceleration, termination, repayment or cancellation under, entitle
any party to receive any payment or benefit pursuant to, or result in the
creation of any Lien upon any of the properties or assets of any member of the
Fiserv Group under, (i) any provision of the Organizational Documents of any
member of the Fiserv Group, (ii) any Applicable Law applicable to any member
of the Fiserv Group or any of their respective properties or (iii) any Fiserv
Contract, except for, in the case of this clause (iii), any such
contraventions, violations, losses, defaults, accelerations, terminations,
repayments, cancellations or Liens that, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect on the
Fiserv Group. Except as set forth in Schedule 2.2.1(b), no Governmental
Approval (other than pursuant to the HSR Act) or other Consent is required to
be obtained or made by any member of the Fiserv Group in connection with the
execution and delivery of this Agreement by Fiserv or the consummation by
Fiserv of the transactions contemplated hereby.
(c) Due Organization, etc. Each member of the Fiserv Group is a corporation,
partnership, limited liability company, trust or trust company duly organized,
validly existing and in good standing under the laws of such member's
jurisdiction of organization, with the requisite corporate, partnership,
company, trust or trust company power and authority, as applicable, to carry
on its business as now conducted and to own or lease and to operate its
properties as and in the places where such business is now conducted and such
properties are now owned, leased or operated. Each member of the Fiserv Group
is duly qualified to do business and is in good standing as a foreign
corporation, partnership, limited liability company, trust or trust company,
as applicable, in all jurisdictions in which the failure to be so qualified,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect on the Fiserv Group.
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(d) Organizational Documents, etc. Fiserv has made available to BHC Parent a
copy of Exhibit 21 to its Form 10-K for its fiscal year ended December 31,
1996. Fiserv has made available to BHC Parent complete and correct copies of
the Organizational Documents, as in effect on the date hereof, of each member
of the Fiserv Group. BHC Parent has been given the opportunity to inspect the
corporate minutes and stock transfer books of Fiserv, and each other direct
and indirect Subsidiary of Fiserv.
2.2.2. Capitalization. (a) Fiserv. The authorized capital stock of Fiserv
consists of 25,000,000 shares of preferred stock of which no shares are issued
and outstanding; and 150,000,000 Fiserv Shares of which 45,385,519 shares as
of the date hereof are issued and outstanding. All such outstanding Fiserv
Shares have been duly authorized and validly issued and are fully paid and
nonassessable.
(b) Fiserv Sub. The authorized capital stock of Fiserv Sub consists of 7,500
shares of Common Stock, par value $1.00 per share, all of which shares have
been validly issued and are outstanding, fully paid and nonassessable.
(c) Other Agreements with Respect to Capital Stock. There are no preemptive
or similar rights on the part of any Person with respect to the issuance of
any shares of capital stock of Fiserv or any other member of the Fiserv Group.
Except (i) for this Agreement, (ii) in respect of the Fiserv Employee Options
and (iii) as set forth in Schedule 2.2.2(c) currently there are no
subscriptions, options, warrants or other similar rights, agreements or
commitments of any kind obligating Fiserv or any other member of the Fiserv
Group to issue or sell, or to cause to be issued or sold, or to repurchase or
otherwise acquire, any shares of its capital stock or any securities
convertible into or exchangeable for, or any options, warrants or other
similar rights relating to, any such shares.
2.2.3. Undisclosed Liabilities. The Fiserv Group is not subject to any
obligation or liability of any nature, whether absolute, accrued, contingent
or otherwise and whether due or to become due, and, to the knowledge of
Fiserv, there is no existing condition, situation or set of circumstances
which would reasonably be expected to result in such an obligation or
liability, other than (i) obligations and liabilities contemplated by or in
connection with this Agreement or the transactions contemplated hereby, (ii)
as and to the extent disclosed or reserved against in the audited consolidated
balance sheet as at December 31, 1996 included in Fiserv Financial Statements,
(iii) obligations and liabilities incurred since December 31, 1996 in the
ordinary course of business consistent with past practices and not prohibited
by this Agreement and (iv) obligations and liabilities that could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect on the Fiserv Group.
2.2.4. Absence of Adverse Changes or Events. Since December 31, 1996, Fiserv
and its Subsidiaries, taken as a whole, have conducted business in all
material respects only in the ordinary course. Since December 31, 1996, there
have not been any changes in the business, assets, operations or financial
condition of Fiserv or any of its Subsidiaries which in the aggregate have
had, or would reasonably be expected to have, a Material Adverse Effect on the
business, assets, operations or financial condition of Fiserv and its
Subsidiaries taken as a whole, nor has Fiserv declared, set aside or made
payment of any dividend or distribution of assets to its stockholders.
2.2.5. Taxes. (a) Filings and Payments. All material Fiserv Tax Returns
required to date with respect to the operations of Fiserv and its Subsidiaries
have been duly filed; Taxes shown to be due and payable on such returns have
been paid when due and there are no pending assessments, asserted deficiencies
or claims for additional material Taxes which have not been paid; there are no
material deficiencies which representatives of the IRS have proposed to Fiserv
or have advised Fiserv are expected to be included in an audit report; and no
material special charges, penalties or fines have been asserted in writing
against Fiserv or any of its Subsidiaries with respect to payment or failure
to pay any material Taxes. Fiserv has been audited by the IRS through December
31, 1992. The reserve or accrual for Taxes shown in the December 31, 1996
balance sheet of Fiserv is sufficient for payment of all unpaid Taxes of
Fiserv and its Subsidiaries through such date.
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(b) No Intention to Reacquire Shares. As of the date hereof, Fiserv has no
plan or intention to reacquire any Fiserv Shares issued in the Merger.
(c) Corporation. Each of Fiserv and Fiserv Sub is a "corporation" within the
meaning of section 7701(a)(3) of the Code.
(d) Investment Company; No Bankruptcy. Neither Fiserv nor Fiserv Sub is an
investment company within the meaning of Sections 368(a)(2)(F)(iii) and (iv)
of the Code. Fiserv Sub is not under the jurisdiction of a court in a Title 11
or similar case within the meaning of Section 368(a)(3)(A) of the Code.
2.2.6. Title to Properties and Absence of Liens. Fiserv and its Subsidiaries
had good and marketable title to all material properties and assets, real and
personal, reflected in the Fiserv Financial Statements, free and clear of all
security interests, liens, claims, encumbrances and charges, except (i) liens
for current taxes not yet due and payable, (ii) liens, encumbrances and claims
disclosed, and (iii) such imperfections of title, easements and encumbrances,
if any, as are not material in character, amount or extent and do not
materially detract from the value, or materially interfere with the use, of
the properties subject thereto or affected thereby or otherwise materially
impair business operations being conducted thereon. All material leases
pursuant to which Fiserv or any of its Subsidiaries leases real property are
valid and effective in accordance with their respective terms in all material
respects, and there is no default under any such lease which could result in a
forfeiture or termination thereof.
2.2.7. Patents, Licenses and Infringement. Since December 31, 1994, neither
Fiserv nor any of its Subsidiaries has received any claim alleging invalidity
of any important patent, trademark or tradename owned by any of such Persons
or infringement of any patent, trademark or tradename held by another. Fiserv
is not aware of any facts which it believes would render invalid any important
patent, trademark or tradename owned by it or any of its Subsidiaries.
2.2.8. Litigation. Except as disclosed in the Fiserv Financial Statements or
as set forth in Schedule 2.2.8, there is no judicial or administrative action,
suit, investigation, inquiry or proceeding pending or, to the knowledge of
Fiserv, threatened, or any reasonable basis therefor, that (a) individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect on the Fiserv or result in any liability on the part of the Fiserv in
an amount in excess of $1,000,000 individually or (b) questions the validity
of this Agreement or of any action taken or to be taken by any member of the
Fiserv or any stockholder of Fiserv in connection with this Agreement or the
transactions contemplated thereby.
2.2.9. Compliance with Laws and Other Instruments; Governmental
Approvals. (a) Compliance with Laws, etc. Except as disclosed in Schedule
2.2.9(a), no member of the Fiserv Group is in material violation of or
material default under, or has at any time since December 31, 1996 materially
violated or been in material default under, (i) any Applicable Law applicable
to it or any of its properties or business or (ii) any provision of its
Organizational Documents. Schedule 2.2.9(a) sets forth a correct and complete
list of all consent decrees or other similar agreements entered into by any
member of the Fiserv Group with any Governmental Authority currently in
effect. No Governmental Authority has instituted, implemented, taken or
threatened to take any other action the effect of which, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect
on the Fiserv Group.
(b) Governmental Approvals. Except as disclosed in Schedule 2.2.9(b), all
material Governmental Approvals necessary for the conduct of the business and
operations of each member of the Fiserv Group have been duly obtained and are
in full force and effect. There are no proceedings pending or, to the
knowledge of Fiserv, threatened that would reasonably be expected to result in
the revocation, cancellation or suspension, or any materially adverse
modification, of any such Governmental Approval, and except with respect to
Governmental Approvals set forth on Schedule 2.2.9(b), the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby will not result in any such revocation, cancellation,
suspension or modification.
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(c) Filings. Since December 31, 1994, each member of the Fiserv Group has
filed all material registrations, reports, statements, notices and other
material filings required to be filed with the Commission and any other
Governmental Authority by such member of the Fiserv Group, to the extent
applicable, including all required amendments or supplements to any of the
above (the "Fiserv Filings"), except to the extent that failure to file could
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect on the Fiserv Group. The Fiserv Filings complied in
all material respects, where applicable, with the requirements of the
Securities Act, the Exchange Act and any other Governmental Authority. As of
their respective dates, each of the Fiserv Filings constituting prospectuses,
annual reports on Form 10-K and proxy statements did not contain any untrue
statement of a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading. Fiserv has made available to BHC Parent complete
and correct copies of all Fiserv Filings made within the past two years
(including but not limited to all filings on Form 10-K, 10-Q, and 8-K).
(d) Fiserv Financial Statements. The Fiserv Financial Statements included in
the Fiserv Filings have been prepared in accordance with generally accepted
accounting principles in the United States applied on a consistent basis
("GAAP") throughout the periods presented in the Fiserv Financial Statements.
The consolidated balance sheets of Fiserv and its Subsidiaries included in
Fiserv Financial Statements present fairly in and all material respects the
financial position of Fiserv and its Subsidiaries as at the respective dates
thereof; and the consolidated statements of operations, statements of changes
in stockholders' equity and statements of cash flows of Fiserv and its
Subsidiaries included in Fiserv Financial Statements present fairly in all
material respects the results of operations, stockholders' equity and cash
flows of Fiserv and its Subsidiaries for the respective periods indicated.
2.2.10. ERISA. (a) Schedule of Plans, etc. Schedule 2.2.10(a) sets forth a
correct and complete list of each Fiserv Plan maintained by Fiserv and for
which an IRS Form 5500 was required to be filed within the last twelve months
(collectively, the "Fiserv Core Plans"). Fiserv has made available to BHC
Parent correct and complete copies of all written Fiserv Core Plans, all
related trusts or other funding agreements and the most recent IRS Form 5500
filed in respect of any such Fiserv Core Plan. Except as disclosed on Schedule
2.2.10(a), each Fiserv Plan intended to be qualified under section 401(a) of
the Code has received a favorable determination letter from the IRS as to its
qualification under the Code and, to the knowledge of Fiserv, (x) no amendment
has been made to any such Fiserv Plan since the date of its most recent
determination letter that would reasonably be expected to result in the
disqualification of such Fiserv Plan and (y) no other event has occurred with
respect to any such Fiserv Plan which would reasonably be expected to
adversely affect the qualification of such Fiserv Plan.
(b) No Minimum Fiserv Funding Standards, etc. Except as disclosed on
Schedule 2.2.10(b), no Fiserv Plan is subject to the minimum funding standards
of section 302 of ERISA or section 412 of the Code. No Fiserv Plan is a
multiemployer plan (as defined in section 3(37) of ERISA) or a multiple
employer plan and, except as disclosed on Schedule 2.2.10(b), no Fiserv Plan
is maintained in connection with any trust described in section 501(c)(9) of
the Code. No material liability has been incurred pursuant to the provisions
of Title I or IV of ERISA by any member of the Fiserv Group or any ERISA
Affiliate thereof and no condition or event exists or has occurred which would
reasonably be expected to result in any such material liability to any such
Person.
(c) Operation of the Fiserv Plans, etc. Each of the Fiserv Plans has been
operated and administered in compliance with its terms and all Applicable Law,
including but not limited to ERISA and the Code, except for any failures to
comply that, individually or in the aggregate, would not reasonably be
expected to result in material liability of any member of the Fiserv Group.
There are no material claims pending or, to the knowledge of Fiserv,
threatened by or on behalf of any employee of any member of the Fiserv Group
involving any such Fiserv Plan or its assets (other than routine claims for
benefits under the terms of any such Fiserv Plan). All contributions required
to have been made to any plan subject to Title IV of ERISA by any member of
the Fiserv Group or any ERISA Affiliate thereof pursuant to Applicable Law
(including, without limitation, ERISA and the Code) have been made within the
time required by such Applicable Law.
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(d) No Prohibited Transactions. Neither any member of the Fiserv Group nor
any ERISA Affiliate has any liability with respect to any transaction
including a Fiserv Plan in violation of section 406 of ERISA or any
"prohibited transaction," as defined in section 4975(c)(1) of the Code, for
which no exemption exists under section 408 of ERISA or section 4975(c)(2) or
(d) of the Code, except for any such liability that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect
on the Fiserv Group. Neither any member of the Fiserv Group nor any ERISA
Affiliate has participated in violation of Part 4 of Title I, Subtitle B of
ERISA by any plan fiduciary of any Fiserv Plan and has any unpaid civil
liability under section 502(1) of ERISA, except for any such violation or
liability that, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect on the Fiserv Group. There are no
suits, investigations or other proceedings pending or threatened in writing by
any Governmental Authority of or against any Fiserv Plan, the trustee of any
assets held thereunder or Fiserv, relating to the Fiserv Plans.
(e) Market Value, etc. The market value of assets under each Fiserv Plan
that is a Fiserv Pension Plan, as hereinafter defined, is not materially less
than the present value of all benefit liabilities within the meaning of
section 4001(a)(16) of ERISA, as determined in accordance with PBGC methods,
factors and assumptions applicable to a pension plan terminating on the last
day of the plan year immediately preceding the date of this Agreement. For
purposes of this Section 2.2.10 "Fiserv Pension Plan" shall mean a funded
employee pension benefit plan, as defined in section 3(2) of ERISA,
established or maintained by any member of the Fiserv Group or any ERISA
Affiliate that is not an individual account plan within the meaning of section
3(34) of ERISA.
(f) Reportable Event. No Fiserv Plan that is a Fiserv Pension Plan has been
the subject of a Reportable Event as to which notices would be required to be
filed with the PBGC.
(g) No Increase in Expense. Except for the increase in the match and the
employer payment of administration expenses in the Fiserv, Inc. 401(K) Plan,
there has been no amendment to, written interpretation or announcement
(whether or not written) or change in employee participating or coverage
under, any Fiserv Plan that would increase materially the expense of
maintaining such Fiserv Plan above the level of expense incurred in respect of
such Fiserv Plan for the most recent year.
(h) No Liability, etc. No liability has been incurred by Fiserv or an ERISA
Affiliate for any tax, penalty or other liability with respect to any Fiserv
Plan.
(i) Required Contributions. Fiserv has made all required contributions under
each Fiserv Plan that is a Fiserv Pension Plan on a timely basis or, if not
due yet, adequate accruals therefor have been provided for in the financial
statements. No Fiserv Plan that is a Fiserv Pension Plan has incurred any
"accumulated funding deficiency" within the meaning of section 302 of ERISA or
section 412 of the Code and no Fiserv Plan that is a Fiserv Pension Plan has
provided for or received a waiver of the minimum funding standards imposed by
section 412 of the Code.
(j) No Termination. There has been no termination or partial termination, as
defined in section 411(d) of the Code and the regulations thereunder, of any
Fiserv Plan that is a Fiserv Pension Plan.
(k) Welfare Plans. The Welfare Plans that are group health plans as defined
in COBRA have complied with the requirements of COBRA to provide healthcare
continuation coverage, to qualified beneficiaries who have elected, or may
elect to have, such coverage, except for any violation that, individually or
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect on the Fiserv Group. The Fiserv Group, or its agents who administer any
of the Welfare Plans, have complied with the notification and written notice
requirements of COBRA, except for any violation that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect
on the Fiserv Group.
2.2.11. Brokers, Finders, etc. All negotiations relating to this Agreement
and the transactions contemplated hereby have been carried on without the
participation of any Person acting on behalf of Fiserv in
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such manner as to give rise to any valid claim against any member of the
Fiserv Group or Fiserv Sub for any brokerage or finder's commission, fee or
similar compensation.
2.2.12. Pooling of Interests. Except as disclosed on Schedule 2.1.19, to the
best of Fiserv's knowledge, after due consultation with its accountants, there
is no fact, event or condition on the date hereof that could reasonably be
expected to prevent the Pooling Condition from being satisfied under the terms
and conditions of the Agreement.
2.2.13. Disclosure. There is no fact, event or condition known to Fiserv or
Fiserv Sub that since December 31, 1996 through the date hereof has had, or in
the future may have (so far as it can now reasonably foresee), a Material
Adverse Effect on the Fiserv Group that has not been disclosed in writing to
BHC Parent on the date hereof by or on behalf of Fiserv specifically for use
in connection with the transactions contemplated by this Agreement. At the
date hereof, to the best of Fiserv's knowledge, the transaction contemplated
by this Agreement will not have a Material Adverse Effect on BHC Parent or any
member of the BHC Group.
2.2.14. Proxy Statement/Prospectus. On the date on which Fiserv files its
Registration Statement with the Commission, on the date of effectiveness
thereof, on the date on which the Proxy Statement/Prospectus is mailed to the
holders of Common Stock, on the date the stockholders meeting of BHC Parent is
held and on the Closing Date, such Registration Statement and the Proxy
Statement/Prospectus will comply in all material respects with the
requirements of the Securities Act, the rules and regulations of the
Commission thereunder and all other applicable requirements, and will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances under which they were made;
provided, however, that the foregoing representation and warranty shall not
apply to information concerning BHC Parent furnished by BHC Parent in writing
expressly for use in such registration statement or in the Proxy
Statement/Prospectus.
ARTICLE III
Covenants
3.1. Covenants of BHC Parent.
3.1.1. Conduct of Business. From the date hereof to the Effective Time,
except as contemplated by or in connection with this Agreement or the
transactions contemplated hereby, as described on Schedule 3.1.1 or as
consented to by Fiserv, any request for such consent to be considered by
Fiserv in good faith, BHC Parent will, and will cause each member of the BHC
Group to:
(a) carry on its business in the ordinary course consistent with past
practices, and use all reasonable best efforts (to the extent consistent
with good business judgment) to preserve intact its present business
organization, keep available the services of its executive officers and key
employees, and preserve its relationships with customers, clients,
suppliers and others having material business dealings with it;
(b) not amend its certificate of incorporation or by-laws or other
Organization Document;
(c) not merge or consolidate with, or agree to merge or consolidate with,
or purchase substantially all of the assets of, or otherwise acquire any
business or any corporation, partnership, association or other business
organization or division thereof;
(d) not engage in any transaction with Fiserv Sub, Fiserv or any of their
respective Affiliates that would be a violation of Applicable Law;
(e) not take any action or omit to take any action, which action or
omission would result in a breach or inaccuracy of any of the
representations and warranties set forth in Section 2.1.5. at, or as of any
time prior to, the Effective Time;
(f) not sell any assets outside the ordinary course of business
consistent with past practices;
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(g) not purchase any BHC Capital Stock from any shareholder of BHC Parent
or pay or declare any dividends or other distribution in respect of the BHC
Capital Stock, except for cash dividends permitted under Section 3.1.8;
(h) not enter into any agreements, contracts or commitments for capital
expenditures other than in the ordinary course of business consistent with
past practices or that provide for in the case of any single agreement or
related agreements annual payments by the BHC Group of $2,000,000 or more;
(i) not agree or commit to do any of the foregoing referred to in clauses
(a)-(h); and
(j) promptly advise Fiserv of any fact, condition, occurrence or change
known to BHC Parent that is reasonably expected to have a Material Adverse
Effect on the BHC Group or cause a breach of this Section 3.1.1.
3.1.2. No Solicitation. Except as contemplated hereby, BHC Parent agrees not
to (and shall use reasonable efforts to cause the officers, directors, and
employees and any investment banker, attorney, accountant, or other agent
retained by it not to) solicit, directly or indirectly, any proposal or offer
to acquire all or any significant part of its business and properties or its
capital stock, whether by merger, purchase of assets, tender offer or
otherwise (a "BHC Acquisition Proposal") or provide any non-public information
concerning the respective company to any third party in connection with a BHC
Acquisition Proposal. Notwithstanding the foregoing, BHC Parent may furnish
information or cause information to be furnished to, and may participate in
discussions and negotiations directly or through its respective
representatives and enter into an agreement relating to a BHC Acquisition
Proposal with, any third party (including parties with whom or its respective
representatives have had discussions on any basis on or prior to the date
hereof) who makes an unsolicited proposal or offer to it, if the BHC Board
determines in good faith, after consultation with outside counsel, that the
failure to consider such proposal or offer could reasonably be deemed to cause
its directors to breach their fiduciary duties under applicable law. In
addition, nothing contained in this Agreement shall prohibit BHC directors
from (a) issuing a press release or otherwise publicly disclosing the terms of
any Acquisition Proposal, (b) taking and disclosing to its stockholders any
position, and making related filings with the SEC, as required by Rules 14e-2
and 14d-9 under the Exchange Act with respect to any tender offer or (c)
taking any action and making any disclosure to its stockholders which the BHC
Board determines in good faith, after consultation with outside counsel, would
likely be required to be taken or made under applicable law (including,
without limitation, laws relating to the fiduciary duties of directors). In
the event BHC Parent receives a BHC Acquisition Proposal, it shall promptly
inform the other party as to the receipt of such BHC Acquisition Proposal,
unless the BHC Board determines, after consultation with outside counsel, that
giving such notice could reasonably be deemed to cause its directors to breach
their fiduciary duties under applicable law.
3.1.3. Access and Information. From the date hereof to the Effective Time,
BHC Parent will, and will cause each member of the BHC Group to, give to
Fiserv and Fiserv's accountants, counsel and other representatives reasonable
access during normal business hours to each such member of the BHC Group and
respective offices, properties, books, contracts, commitments, reports and
records relating to each member the BHC Group, and to furnish them or provide
them access to all such documents, financial data, records and information
with respect to the properties and businesses of each member the BHC Group as
Fiserv shall from time to time reasonably request, provided that the foregoing
shall be under the general coordination of BHC Parent and shall be subject to
the Confidentiality Agreement. In addition, from the date hereof to the
Effective Time BHC Parent will, and will cause each member of the BHC Group
to, permit Fiserv and Fiserv's accountants, counsel and other representatives
reasonable access to such personnel of the BHC Group during normal business
hours as may be necessary to or reasonably requested by Fiserv in its review
of the properties of the BHC Group, the business affairs of the BHC Group and
the above-mentioned documents and records, provided that BHC Parent shall have
the right to have its representatives participate in such discussions with
personnel of the BHC Group and such discussions shall be subject to the
Confidentiality Agreement.
3.1.4. Subsequent Financial Statements and Filings. (a) Commission
Filings. From the date hereof to the Effective Time, BHC Parent will cause the
members of the BHC Group to make available to Fiserv, promptly
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after the same become available, copies of all materials filed with the
Commission including the financial statements of the BHC Registered Brokers as
the same are filed with the Commission.
(b) Governmental Authority Filings. From the date hereof to the Effective
Time, BHC Parent will file, or cause to be filed, with the Commission or other
relevant Governmental Authority, and promptly thereafter make available to
Fiserv, copies of each registration, report, statement, notice or other filing
required to be filed by any member of the BHC Group with the Commission or any
other Governmental Authority under the Exchange Act, the Securities Act or any
other Applicable Law. All such registrations, reports, statements, notices or
other filings shall comply in all material respects with Applicable Law.
(c) Inspections and Investigations. From the date hereof to the Effective
Time, BHC Parent will cause the members of the BHC Group to make available to
Fiserv, promptly after the same become available, (i) copies of all inspection
reports provided to any member of the BHC Group by the Commission, the NYSE or
NASD, authority or any state regulatory authority or any self-regulatory
agency and (ii) all correspondence and other documents relating to any inquiry
or investigation provided to any member of the BHC Group by the Commission,
the NYSE or NASD or any other state regulatory authority or any after self-
regulatory agency.
(d) Tax Returns. From the date hereof to the Effective Time, each member of
the BHC Group shall duly and timely file all material BHC Tax Returns required
to be filed on or before the Closing Date (including any valid extensions of
time to file). Such BHC Tax Returns shall be prepared on a basis consistent
with the prior tax returns and shall not make, amend or terminate any election
by such member without Fiserv's prior consent. Each member of the BHC Group
shall make available to Fiserv a copy of each such BHC Tax Return.
3.1.5. Public Announcements. From the date hereof to the Effective Time,
except as required by Applicable Law, BHC Parent shall not, and shall not
permit any member of the BHC Group to, make any public announcement in respect
of this Agreement or the transactions contemplated hereby without the prior
consent of Fiserv.
3.1.6. Further Actions. (a) Generally. From the date hereof to the Effective
Time, BHC Parent will, and will cause each member of the BHC Group to, use its
reasonable best efforts to take, or cause to be taken, all actions and to do,
or cause to be done, all things necessary, proper or advisable to consummate
and make effective the transactions contemplated hereby.
(b) Filings, etc. From the date hereof to the Effective Time, BHC Parent
will, as promptly as practicable, file or supply, or cause to be filed or
supplied, all applications, notifications and information required to be filed
or supplied by or on behalf of BHC Parent or any member of the BHC Group
pursuant to Applicable Law in connection with this Agreement, the Merger or
the consummation of the other transactions contemplated hereby, including but
not limited to filings pursuant to the HSR Act. From the date hereof to the
Effective Time, BHC Parent, as promptly as practicable, will make, or cause to
be made, all such other filings and submissions under any Applicable Law
applicable to BHC Parent or any member of the BHC Group and give such
reasonable undertakings, as may be required for BHC Parent to consummate the
Merger and the other transactions contemplated hereby.
(c) Consents. BHC Parent, as promptly as practicable, will use its
reasonable best efforts to obtain, or cause to be obtained, the Consents
listed on Schedule 2.1.1(b), including without limitation the approval of its
shareholders to the consummation of the transactions contemplated hereby.
(d) Other Actions. BHC Parent will use, and cause each member of the BHC
Group to use, its reasonable best efforts to take, or cause to be taken, all
other actions necessary, proper or advisable in order for them to fulfill
their obligations in respect of this Agreement and the transactions
contemplated hereby. BHC Parent will, and will cause each member of the BHC
Group to, coordinate and cooperate with Fiserv in exchanging such information
and supplying such reasonable assistance as may be reasonably requested by
Fiserv in connection with the filings and other actions contemplated by
Section 3.2.6.
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(e) Notice of Certain Events. From the date hereof to the Effective Time,
BHC Parent shall promptly notify Fiserv of:
(i) any fact, condition, event or occurrence known to BHC Parent that
will or reasonably may be expected to result in the failure of any of the
conditions contained in Sections 4.1 and 4.2 to be satisfied;
(ii) any notice or other communication from any Person alleging that the
consent of such Person is or may be required in connection with the
transactions contemplated by this Agreement;
(iii) any notice or other communication from any Governmental Authority
in connection with the transactions contemplated by this Agreement; and
(iv) any actions, suits, claims, investigations or proceedings commenced
or, to the knowledge of BHC Parent, threatened against, relating to or
involving or otherwise affecting any member of the BHC Group which, if
pending on the date of this Agreement, would have been required to have
been disclosed pursuant to Section 2.1.11 or which relate to the
transactions contemplated by this Agreement.
3.1.7. Registration Statement. At all times up to the Effective Time, BHC
Parent will, and will cause the members of the BHC Group to, (a) give such
assistance to Fiserv and its advisors as they may reasonably require in
connection with the preparation of the Registration Statement (and any
accompanying documents and any matters ancillary thereto) in order to comply
with the law and with the requirements of the Commission, the NASD, Nasdaq and
any other Governmental Authority, as applicable; (b) inform Fiserv or its
advisors in writing promptly if, to the knowledge of BHC Parent, the
Registration Statement contains any untrue statement solely with regard to the
BHC Group (not including, in any event, combined financial information for
Fiserv and BHC Parent) of a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they are made, not misleading and (c) inform Fiserv or its advisors in
writing promptly if it becomes aware of any matter with regard to the BHC
Group the existence of which might require a supplement to the Registration
Statement.
3.1.8. Payment of Dividend. Prior to the Effective Time, BHC Parent may
declare and pay to its shareholders dividends equal to $.03 per outstanding
share per quarter.
3.1.9. Offering to BHC Shareholders. BHC Parent shall use reasonable best
efforts to comply with the Securities Act or exemptions available thereunder
and all other Applicable Law in connection with the offering of the Merger
Shares to the BHC shareholders.
3.1.10. Rights Plan. BHC Parent will take such actions as may be necessary
or appropriate to redeem the rights issued pursuant to the Rights Agreement
dated November 12, 1996 between BHC Parent and American Stock Transfer & Trust
Co. (the "Rights Agreement") prior to the consummation of the transactions
contemplated hereby so that such rights do not become exercisable and are not
separately distributed as a result of the transactions contemplated hereby.
3.1.11. Issuance of Additional Shares. After BHC receives shareholder
approval and prior to the Effective Time, BHC Parent shall issue and sell in a
registered public offering, registered block trade or private placement (the
"Offering"), as designated by Fiserv, such number of shares as may be
necessary to fulfill the Pooling Condition. The Offering shall be at a price
per share reasonably acceptable to Fiserv and shall be accomplished on terms
and conditions customary for a registered public offering, registered block
trade or private placement, as the case may be, and shall be co-managed or co-
agented, as the case may be, by underwriters or agents chosen by BHC Parent
and Fiserv. For purposes of the immediately preceding sentence, a price at the
market within the meaning of published accounting industry positions on
pooling shall be considered to be reasonably acceptable to Fiserv. Such shares
shall be treated for all purposes as issued and outstanding shares at the
Effective Time. BHC Parent shall not enter into any written agreement (other
than this Agreement) obligating it to complete the Offering and the Offering
shall not be completed, if so requested by Fiserv prior to BHC Parent's
execution and delivery of any such written agreement.
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3.1.12. Delisting; Transfer Books. BHC parent will take all necessary steps
to delist the BHC Common Stock on the NASDAQ National Market, effective as of
the Closing Date, in accordance with the rules of the NASDAQ National Market,
and BHC Parent shall instruct its transfer agent for the BHC Common Stock to
deliver, as of such date, the BHC Parent stock transfer records and related
materials to a transfer agent for the Fiserv Shares.
3.2. Covenants of Fiserv and Fiserv Sub.
3.2.1. Conduct of Business. From the date hereof to the Effective Time,
except as contemplated by or in connection with this Agreement or the
transactions contemplated hereby, as described on Schedule 3.2.1 or as
consented to by BHC Parent, any request for such consent to be considered by
BHC Parent in good faith, Fiserv will, and will cause each member of the
Fiserv Group to:
(a) carry on its business in the ordinary course consistent with past
practices, and use all reasonable best efforts (to the extent consistent
with good business judgment) to preserve intact its present business
organization, keep available the services of its executive officers and key
employees, and preserve its relationships with customers, clients,
suppliers and others having material business dealings with it;
(b) not amend its certificate of incorporation or by-laws or other
Organizational Document;
(c) not merge or consolidate with, or agree to merge or consolidate with,
or purchase substantially all of the assets of, or otherwise acquire any
business or any corporation, partnership, association or other business
organization or division thereof;
(d) not engage in any transaction with BHC Parent or its Affiliates that
would be a violation of Applicable Law;
(e) not take any action or omit to take any action, which action or
omission would have a Material Adverse Effect on the Fiserv Group;
(f) not pay or declare any dividends or other distribution nor effect a
stock split or stock combination in respect of the Fiserv Shares, except
ordinary dividends consistent with past practices;
(g) not agree or commit to do any of the foregoing referred to in clauses
(a)-(f); and
(h) promptly advise BHC Parent of any fact, condition, occurrence or
change known to Fiserv that is reasonably expected to have a Material
Adverse Effect on the Fiserv Group or cause a breach of this Section 3.2.1.
3.2.2. Fiserv Acquisition Proposal. In the event Fiserv receives a Fiserv
Acquisition Proposal, it shall promptly so notify BHC Parent, unless the
Fiserv Board of Directors determines, after consultation with outside counsel,
that giving such notice could reasonably be deemed to cause its directors to
breach their fiduciary duty under applicable law. In the event Fiserv enters
into a definitive agreement regarding a Fiserv Acquisition Proposal, the
Conversion Ratio provided for under Section 1.5 shall be adjusted so that the
20 business day period used in such calculation shall be the 20 business days
ending 10 days prior to the announcement of the definitive Fiserv Acquisition
Proposal. As used herein, "Fiserv Acquisition Proposal" shall mean any
proposal or offer to acquire all or any significant part of Fiserv's business
and properties or its capital stock, whether by merger, purchase of assets,
tender offer or otherwise.
3.2.3. Access and Information. From the date hereof to the Effective Time,
Fiserv will, and will cause each member of the Fiserv Group to, give to BHC
Parent and BHC Parent's accountants, counsel and other representatives
reasonable access during normal business hours to each such member of the
Fiserv Group respective offices, properties, books, contracts, commitments,
reports and records relating to each member the Fiserv Group, and to furnish
them or provide them access to all such documents, financial data, records and
information with respect to the properties and businesses of each member the
Fiserv Group as BHC Parent shall from time to time reasonably request,
provided that the foregoing shall be under the general coordination of Fiserv
and shall be subject to the Confidentiality Agreement. In addition, from the
date hereof to the Effective Time Fiserv will, and will cause each member of
the Fiserv Group to, permit BHC Parent and BHC Parent's
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accountants, counsel and other representatives reasonable access to such
personnel of the Fiserv Group during normal business hours as may be necessary
to or reasonably requested by BHC Parent in its review of the properties of
the Fiserv Group, the business affairs of the Fiserv Group and the above-
mentioned documents and records, provided that Fiserv shall have the right to
have its representatives participate in such discussions with personnel of the
Fiserv Group and such discussions shall be subject to the Confidentiality
Agreement.
3.2.4. Subsequent Financial Statements and Filings. (a) Filings with a
Government Authority. From the date hereof to the Effective Time, Fiserv will
file, or cause to be filed, with the Commission, or other relevant
Governmental Authority, and promptly thereafter make available to BHC Parent,
copies of each registration, report, statement, notice or other filing
required to be filed by any member of the Fiserv Group with the Commission, or
any other Governmental Authority, or any other Applicable Law. All such
registrations, reports, statements, notices or other filings shall comply in
all material respects with Applicable Law.
(b) Commission Correspondence. From the date hereof to the Effective Time,
Fiserv will cause the members of the Fiserv Group to make available to BHC
Parent, promptly after the same become available, copies of all correspondence
and other documents relating to any inquiry or investigation provided to any
member of the Fiserv Group by the Commission.
3.2.5. Public Announcements. From the date hereof to the Effective Time,
except as required by Applicable Law, Fiserv shall not, and shall not permit
any member of the Fiserv Group to, make any public announcement in respect of
this Agreement or the transactions contemplated hereby without the prior
consent of BHC Parent.
3.2.6. Further Actions. (a) Generally. From the date hereof to the Effective
Time, Fiserv will, and will cause each member of the Fiserv Group to, use its
reasonable best efforts to take, or cause to be taken, all actions and to do,
or cause to be done, all things necessary, proper or advisable to consummate
and make effective the transactions contemplated hereby.
(b) Filings, etc. From the date hereof to the Effective Time, Fiserv will,
as promptly as practicable, file or supply, or cause to be filed or supplied,
all applications, notifications and information required to be filed or
supplied by or on behalf of Fiserv or any member of the Fiserv Group pursuant
to Applicable Law in connection with this Agreement, the Merger or the
consummation of the other transactions contemplated hereby, including but not
limited to filings pursuant to the HSR Act. From the date hereof to the
Effective Time, Fiserv, as promptly as practicable, will make, or cause to be
made, all such other filings and submissions under any Applicable Law
applicable to Fiserv or any member of the Fiserv Group and give such
reasonable undertakings, as may be required for Fiserv to consummate the
Merger and the other transactions contemplated hereby.
(c) Consents. Fiserv, as promptly as practicable, will use its reasonable
best efforts to obtain, or cause to be obtained, the Consents listed on
Schedule 2.2.1(b);
(d) Other Actions. Fiserv will use, and cause each member of the Fiserv
Group to use, its reasonable best efforts to take, or cause to be taken, all
other actions necessary, proper or advisable in order for them to fulfill
their obligations in respect of this Agreement and the transactions
contemplated hereby. Fiserv will, and will cause each member of the Fiserv
Group to, coordinate and cooperate with BHC Parent in exchanging such
information and supplying such reasonable assistance as may be reasonably
requested by BHC Parent in connection with the filings and other actions
contemplated by Section 3.1.6.
(e) Notice of Certain Events. From the date hereof to the Effective Time,
Fiserv shall promptly notify BHC Parent of:
(i) any fact, condition, event or occurrence known to Fiserv that will or
reasonably may be expected to result in the failure of any of the
conditions contained in Sections 4.1 and 4.3 to be satisfied;
(ii) any notice or other communication from any Person alleging that the
consent of such Person is or may be required in connection with the
transactions contemplated by this Agreement;
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(iii) any notice or other communication from any Governmental Authority
in connection with the transactions contemplated by this Agreement; and
(iv) any actions, suits, claims, investigations or proceedings commenced
or, to the knowledge of Fiserv, threatened against, relating to or
involving or otherwise affecting any member of the Fiserv Group which, if
pending on the date of this Agreement, would have been required to have
been disclosed pursuant to Section 2.2.8 or which relate to the
transactions contemplated by this Agreement.
3.2.7. Tax-Free Reorganization Covenants. (a) Following the Merger, the
Surviving Corporation will, and Fiserv will cause the Surviving Corporation
to, continue the historic business of BHC Parent or use a significant portion
of BHC Parent's business assets in a business.
(b) Following the Merger, the Surviving Corporation will not issue, and
Fiserv will not cause the Surviving Corporation to issue, additional shares of
stock of the Surviving Corporation that would result in Fiserv losing
"control" (within the meaning of Section 368(c) of the Code) of the Surviving
Corporation.
(c) Fiserv has no plan or intention to reacquire any of its Common Stock
issued in the Merger.
(d) Fiserv has no plan or intention to liquidate the Surviving Corporation;
to merge the Surviving Corporation with and into another corporation; to sell
or otherwise dispose of the stock of the Surviving Corporation or to cause the
Surviving Corporation to sell or otherwise dispose of any of the assets of
Fiserv Sub acquired in the Merger, except for dispositions made in the
ordinary course of business or transfers described in Section 368(a)(2)(C) of
the Code.
3.2.8. Employee Benefit Matters. Fiserv and Fiserv Sub agree: (i) for the
period beginning at the Effective Time and ending December 31, 1999 (the
"Transition Period"), to maintain, as permitted by applicable law (including,
but not limited to, the minimum coverage requirements of section 410(b) of the
Code, as applied to qualified retirement plans), for the benefit of the
current employees of BHC Parent and its Subsidiaries who continue employment
with Fiserv or its Subsidiaries after the Effective Time and their respective
eligible dependents and beneficiaries ("BHC Employees") the BHC Plans in
effect as of the date of this Agreement as set forth in Schedule 2.1.16(a) or
to provide benefits under such employee benefit plans as may be adopted from
time to time by the Surviving Corporation or its successor that, in the
aggregate, are substantially comparable to the benefits offered to current
employees of BHC Parent and its Subsidiaries under the BHC Plans; (ii) to
waive any limitations regarding pre-existing conditions under any new health
benefit plan maintained by the Fiserv Group (and/or any of its affiliates) for
the benefit of BHC Employees currently covered or eligible to be covered under
existing health benefit plans or in which BHC Employees participate during the
Transition Period; (iii) for all purposes under all benefit plans and policies
(except Fiserv's sabbatical plan), to treat all service by BHC Employees with
the BHC Group or its Subsidiaries before the Effective Time as service with
Fiserv and its Subsidiaries; and (iv) to give effect, in determining any
deductible and maximum out-of-pocket limitations with respect to welfare
benefit plans maintained by Fiserv (and/or any of its Affiliates) in which BHC
Employees participate during the Transition Period, to claims incurred and
amounts paid by, and amounts reimbursed to, BHC Employees with respect to
similar plans maintained by the BHC Group or its Subsidiaries for their
benefit immediately prior to the Effective Time. Fiserv agrees that from and
after the Effective Time and until all the liabilities for benefits and
expenses have been fully satisfied, Fiserv and/or its Subsidiaries will
continue to maintain and administer each of the BHC Group's plans and the
trusts maintained as part thereof in accordance with their respective terms
and provisions.
3.3. BHC Options and Option Plans. (a) Conversion of Options. As soon as
practicable following the date of this Agreement, the Board of Directors of
BHC Parent or, to extent of its authority, any committee thereof administering
the BHC Option Plans, shall take all actions necessary or appropriate to cause
each BHC Option outstanding at the Effective Time, to be converted, effective
at the Effective Time and subject to the consummation of the Merger, into an
option to purchase, on the same terms and conditions (including exercise
rights and restrictions) as were applicable to such BHC Option at the
Effective Time, subject to Section 2.1.2(c), a number of Fiserv Shares (with
any fractional Fiserv Share being disregarded) equal to the product determined
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by multiplying the number of shares of Common Stock subject to such BHC Option
by the Conversion Ratio, at an exercise price per share (rounded upward to the
nearest full cent) equal to the quotient determined by dividing the exercise
price of such BHC Option by the Conversion Ratio, subject to the provisions of
Section 3.4(b). Such Merger Shares are hereafter referred to as the "Option
Conversion Shares".
(b) Notice to Holders. As soon as practicable after the Closing Date and in
any event within five (5) days thereafter, BHC Parent and Fiserv shall jointly
deliver a notice to each BHC Option Holder setting forth (i) the number of
Option Conversion Shares (and the price per share) that may be purchased by
such holder upon the exercise of any BHC Options held by such BHC Option
Holder after consummation of the Merger, and (ii) confirming that each BHC
Option, as converted, shall continue to be subject to the terms and
conditions, including without limitation, the terms and conditions relating to
exercisability, as in effect with respect to such BHC Option at the Effective
Time.
(c) BHC Option Plans. Prior to the Effective Time, but effective as of the
Effective Time, Fiserv shall take all actions necessary or appropriate to
assume the BHC Option Plans and to reserve for issuance thereunder the number
of Merger Shares covered by the BHC Options at the Effective Time.
(d) Form S-8. As soon as practicable following the Effective Time, and in
any event within ten (10) days of the Closing Date, Fiserv shall file a
Registration Statement on Form S-8 to register the Fiserv Shares issuable upon
the exercise of the BHC Options, as converted.
3.4. Pooling Condition. (a) Pooling. Each of Fiserv and BHC Parent hereby
covenant and agree, together with their respective independent accountants, to
take all steps reasonably necessary (including, without limitation, the
provisions of Section 3.1.11) in order to obtain declaration of effectiveness
of a registration statement on Form S-4 under the Securities Act containing
pro-forma financial statements that account for the Merger as a pooling of
interests in accordance with generally accepted accounting principles. In the
event Fiserv reasonably determines, based on the written advice of Fiserv
auditors, the consummation of the Merger in accordance with the provisions of
Section 1.5 would be accounted for as a pooling of interests in accordance
with generally accepted accounting principles (such favorable determination is
sometimes referred to herein as the "Pooling Condition"), then, subject to the
other terms and conditions of this Agreement, the Merger shall be consummated.
(b) Pooling Condition Not Satisfied. If, based on the written advice of
Fiserv's independent auditors, Fiserv reasonably determines that the Pooling
Condition will not be satisfied, then, subject to the other terms and
conditions of this Agreement, the Merger shall be consummated, provided
however, that the Merger Consideration shall be adjusted by modifying the
definition of Conversion Ratio such that "$33.50" is replaced with "$31.50."
3.5. Nasdaq Requirements. Fiserv shall provide timely notice to Nasdaq of
its intent to issue additional shares of Fiserv Common Stock to holders of BHC
Parent Common Stock pursuant to the Merger and upon the exercise of options to
purchase shares of Fiserv Common Stock granted under the BHC Option Plans, and
will comply in full with any and all requirements of Nasdaq's National Market
System applicable to the issuance of such shares or the trading of such shares
subsequent to the Merger.
3.6. Registration Statement. As soon as practicable after the execution of
this Agreement, Fiserv shall file with the Commission the Registration
Statement to register the shares of Fiserv Common Stock to be issued pursuant
to the Merger and the resale thereof by persons who may be deemed to be
underwriters under Rule 145 of the Securities Act, shall use its reasonable
best efforts to have the Commission declare the Registration Statement
effective as soon as practicable and shall maintain the effectiveness of the
Registration Statement for a period of two (2) years following the Effective
Date.
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ARTICLE IV
Conditions Precedent
4.1. Conditions to Obligations of Each Party. The obligations of BHC Parent,
Fiserv and Fiserv Sub to effect the Merger and to consummate the other
transactions contemplated hereby shall be subject to the fulfillment at or
prior to the Effective Time of the following conditions:
4.1.1. HSR Act Notification. In respect of the notifications of Fiserv
and Fiserv Sub on the one hand and BHC Parent on the other hand pursuant to
the HSR Act, the applicable waiting period and any extensions thereof shall
have expired or been terminated.
4.1.2. No Injunction, etc. Consummation of the transactions contemplated
hereby shall not have been restrained, enjoined or otherwise prohibited by
any Applicable Law, including any order, injunction, decree or judgment of
any court or other Governmental Authority, and no action or proceeding
brought by any Governmental Authority shall be pending at the Effective
Time before any court or other Governmental Authority to restrain, enjoin
or otherwise prevent the consummation of the transactions contemplated
hereby, and there shall not have been promulgated, entered, issued or
determined by any court or other Governmental Authority to be applicable to
this Agreement any Applicable Law making illegal the consummation of the
transactions contemplated hereby and no proceeding brought by any
Governmental Authority with respect to the application of any such
Applicable Law shall be pending. Prior to the date on which BHC Parent
mails the Registration Statement to its stockholders, the Commission shall
have declared the Registration statement effective, and as of the dates of
the BHC Parent stockholders meeting and the Closing Date, no stop order
shall have been entered and no proceedings under Sections 8(d) or 8(e) of
the Securities Act shall have been initiated by the Commission.
4.1.3. Other Consents. The Consent of the shareholders of BHC Parent to
authorize the Merger shall have been received. Copies of all such Consents
shall have been delivered to Fiserv and to BHC Parent.
4.1.4. Approval of Merger Shares for Listing. The Merger Shares shall
have been approved for listing on Nasdaq upon notice of issuance.
4.2. Conditions to Obligations of Fiserv and Fiserv Sub. The obligations of
Fiserv and Fiserv Sub to effect the Merger and to consummate the other
transactions contemplated hereby shall be subject to the fulfillment (or
waiver by Fiserv Sub) at or prior to the Effective Time of the following
additional conditions, which BHC Parent agrees to use its reasonable best
efforts to cause to be fulfilled:
4.2.1. Representations, Performance, etc. The representations and
warranties set forth in Section 2.1 shall have been true and correct in all
materials aspects at and as of the date hereof, and shall be true and
correct in all material respects at and as of the Effective Time as though
made at and as of the Effective Time, provided that the accuracy of any
representation or warranty that by its terms speaks only as of the date
hereof or another date prior to the Effective Time shall be determined
solely as of the date hereof or such other date, as the case may be. BHC
Parent and its Affiliates shall have duly performed and complied in all
material respects with all agreements and conditions required by this
Agreement to be performed or complied with by it prior to or at the
Effective Time. BHC Parent shall have delivered to Fiserv and Fiserv Sub a
certificate, dated the Effective Time and signed by the President or a Vice
President of BHC Parent, to the effect set forth above in this Section
4.2.1, provided, however, that such certificate may include, as an
attachment thereto, supplemental disclosure schedules that may modify,
supplement or amend the Schedules attached hereto in order to reflect
changes or developments since the date hereof made in the ordinary course
of business of the BHC Group provided, further, that no such supplemental
disclosure schedule shall set forth any change or development that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect on the BHC Group.
4.2.2. Governmental Approvals. BHC Parent or a member of the BHC Group
shall have obtained all required Governmental Approvals. Copies of all
Governmental Approvals shall have been delivered to Fiserv.
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4.2.3. Opinion of Counsel. Fiserv and Fiserv Sub shall have received a
favorable opinion, in each case addressed to each of them and dated the
Closing Date, from Ballard Spahr Andrews & Ingersoll, special counsel to BHC
Parent in form and substance reasonably satisfactory to counsel to Fiserv and
Fiserv Sub.
4.2.4. Proceedings. All corporate and other proceedings of BHC Parent and
the BHC Group that are required in connection with the transactions
contemplated by this Agreement, and all documents and instruments incident to
such proceedings, shall be reasonably satisfactory to Fiserv Sub and its
special counsel, and Fiserv Sub and such counsel shall have received all such
documents and instruments, or copies thereof, certified if requested, as may
be reasonably requested.
4.2.5. FIRPTA Certification. Fiserv and Fiserv Sub shall have received (a) a
certification from BHC Parent, dated no more than thirty (30) days prior to
the Closing Date and signed by a responsible corporate officer of BHC Parent,
that BHC Parent is not, and has not been at any time during the five years
preceding the date of such certification, a United States real property
holding company, as defined in section 897(c)(2) of the Code, and (b) proof
reasonably satisfactory to Fiserv and Fiserv Sub that BHC Parent has provided
notice of such certification to the IRS in accordance with the provisions of
Treasury regulations section 1.897-2(h)(2).
4.3. Conditions to Obligations of BHC Parent. The obligation of BHC Parent
to effect the Merger and to consummate the other transactions contemplated
hereby shall be subject to the fulfillment (or waiver by BHC Parent), at or
prior to the Effective Time, of the following additional conditions, which
each of Fiserv and Fiserv Sub agrees to use its reasonable best efforts to
cause to be fulfilled:
4.3.1. Representations, Performance, etc. The representations and warranties
set forth in Section 2.2 shall have been true and correct in all material
respects at and as of the date hereof, and shall be true and correct in all
material respects at and as of the Effective Time as though made at and as of
the Effective Time, provided that the accuracy of any representation or
warranty that by its terms speaks only as of the date hereof or another date
prior to the Effective Time shall be determined solely as of the date hereof
or such other date, as the case may be. Fiserv, Fiserv Sub and their
respective Affiliates shall have duly performed and complied in all material
respects with all agreements and conditions required by this Agreement to be
performed or complied with by them prior to or at the Effective Time. Fiserv
and Fiserv Sub shall have delivered to BHC Parent a certificate or
certificates, dated the Effective Time and signed by the President or a Vice
President of each of them, to the effect set forth above in this Section
4.3.1, provided, however, that such certificate may include, as an attachment
thereto, supplemental disclosure schedules that may modify, supplement or
amend the Schedules attached hereto in order to reflect changes or
developments since the date hereof made in the ordinary course of business of
the Fiserv Group provided, further, that no such supplemental disclosure
schedule shall set forth any change or development that, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect
on the Fiserv Group.
4.3.2. Governmental Approvals. Fiserv or a member of the Fiserv Group shall
have obtained all required Governmental Approvals. Copies of all such
Governmental Approvals shall have been delivered to BHC Parent.
4.3.3. Opinions of Counsel. BHC Parent shall have received a favorable
opinion, addressed to it and dated the Closing Date, from Charles W. Sprague,
general counsel of Fiserv and Fiserv Sub and in form and substance reasonably
satisfactory to counsel to BHC Parent.
4.3.4. Proceedings. All corporate and other proceedings of Fiserv Sub and
the Fiserv Group that are required in connection with the transactions
contemplated by this Agreement, and all documents and instruments incident to
such proceedings, shall be reasonably satisfactory to BHC Parent and its
special counsel, and BHC Parent and such counsel shall have received all such
documents and instruments, or copies thereof, certified if requested, as may
be reasonably requested.
4.3.5. Tax Opinion. BHC Parent shall have received from Ballard Spahr
Andrews & Ingersoll an opinion substantially to the effect that, on the basis
of facts, representations and assumptions referenced in such opinion
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that are reasonably consistent with the state of facts existing at the
Effective Time, the Merger will be treated for United States federal income
tax purposes as a reorganization within the meaning of Section 368(a) of the
Code, and that no gain or loss will be required to be recognized by a
shareholder of BHC Parent to the extent such shareholder receives Merger
Shares in exchange for shares of Common Stock. In rendering such opinion,
counsel may request and rely upon representations contained in certificates of
officers of BHC Parent, Fiserv, Fiserv Sub, and holders of 5% of the Common
Stock and others, and BHC Parent, Fiserv and Fiserv Sub shall use their best
efforts to make available such truthful certificates.
4.3.6. Certificates. BHC Parent shall have received from each holder of 5%
or more of the Common Stock a certificate to the effect that such holder has
no plan or intention to sell, exchange or otherwise dispose of the Fiserv
Shares it receives in the Merger.
ARTICLE V
Termination
5.1. Termination. This Agreement may be terminated at any time prior to the
Effective Time:
(a) by the written agreement of Fiserv Sub and BHC Parent;
(b) by BHC Parent, on the one hand, or Fiserv Sub, on the other hand, by
written notice to the other after 5:00 p.m., Eastern Standard Time, six
months from the Closing Date if the Effective Time shall not have occurred
by such date (unless the failure of the effective Time to occur shall be
due to any material breach of this Agreement by the party seeking to
terminate), unless such date is extended by the mutual written consent of
BHC Parent and Fiserv Sub;
(c) by either BHC Parent or Fiserv, if (i) the BHC Board shall withdraw
or modify in a manner adverse to Fiserv its approval or recommendation of
the Merger or (ii) any person or group of persons shall have made a BHC
Acquisition Proposal that the BHC Board determines in good faith, after
consultation with outside counsel that the failure to accept such BHC
Acquisition Proposal could reasonably be deemed to cause the members of the
BHC Board to breach their fiduciary duties under applicable law;
(d) by BHC Parent, if there has been a material breach on the part of
Fiserv or Fiserv Sub of the covenants of Fiserv and Fiserv Sub set forth
herein, or any material failure on the part of Fiserv, Fiserv Sub or any of
their respective Affiliates to perform its obligations hereunder (provided
that the terminating party shall have performed and complied with, in all
material respects, all agreements and covenants required by this Agreement
to have been performed or complied with by such terminating party) prior to
such time, such that, in any such case, any of the conditions to the
effectiveness of the Merger set forth in Section 4.1 or 4.3 could not be
satisfied on or prior to the termination date contemplated by Section
5.1(b); or
(e) by Fiserv, if there has been a material breach on the part of BHC
Parent of its covenants set forth herein or any material failure on the
part of BHC Parent or any of its Affiliates to perform its obligations
hereunder (provided that the terminating party shall have performed and
complied with, in all material respects, all agreements and covenants
required by this Agreement to have been performed or complied with by such
terminating party) prior to such time, such that, in any such case, any of
the conditions to the effectiveness of the Merger set forth in Sections 4.1
or 4.2 could not be satisfied on or prior to the termination date
contemplated by Section 5.1(b).
5.2. Effect of Termination. In the event of the termination of this
Agreement pursuant to Section 5.1, this Agreement shall become void and have
no effect, without any liability to any Person in respect hereof or of the
transactions contemplated hereby on the part of any party hereto, or any of
its directors, officers, employees, agents, consultants, representatives,
advisors, stockholders or Affiliates, except for any liability resulting from
any party's wilful and intentional breach of this Agreement and except that
the provisions of Article VI shall survive any such termination. The foregoing
sentence shall not be construed to limit any party's obligations under Section
6.3.
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ARTICLE VI
Definitions, Miscellaneous
6.1. Definition of Certain Terms. The terms defined in this Section 6.1,
whenever used in this Agreement (including in the Schedules but not including
the Exhibits except as specified therein) shall have the respective meanings
indicated below for all purposes of this Agreement. All references herein to a
Section, Article or Schedule are to a Section, Article or Schedule of or to
this Agreement, unless otherwise indicated.
Adverse Effect: any change in, or effect on, or series of changes in, or
effects on, the business of the affected entity as currently conducted that
would result in the incurrence of damages or liability of the sum of
$500,000 or more.
Affiliate: of a Person means a Person that directly, or indirectly
through one or more intermediaries, Controls, is Controlled by, or is under
common Control with, the first Person, including but not limited to a
Subsidiary of the first Person, a Person of which the first Person is a
Subsidiary, or another Subsidiary of a Person of which the first Person is
also a Subsidiary. "Control" (including the terms "Controlled by" and
"under common Control with") means the possession, directly or indirectly,
of the power to direct or cause the direction of the management policies of
a Person, whether through the ownership of voting securities, by contract,
as trustee or executor, or otherwise.
Agreement: this Agreement and Plan of Merger, including the Schedules and
Exhibits hereto.
Applicable Law: all applicable provisions of all (i) statutes, laws,
rules, administrative codes, regulations or ordinances of any Governmental
Authority, (ii) Governmental Approvals and (iii) orders, decisions,
injunctions, judgments, awards and decrees of any Governmental Authority.
BHC Acquisition Proposal: as defined in Section 3.1.2.
BHC Client: any client to which BHC Parent or any of its Subsidiaries or
Affiliates provides clearing services on the date hereof or on the Closing
Date, as the case may be.
BHC Contract: as defined in Section 2.1.8(a).
BHC Employees: as defined in Section 3.2.18.
BHC Employment and Withholding Taxes: any federal, state, local, foreign
or other employment, unemployment insurance, social security, disability,
workers' compensation, payroll, health care, or other similar tax, duty or
other governmental charge or assessment or deficiencies thereof and all
Taxes required to be withheld by or on behalf of each member of the BHC
Group in connection with amounts paid or owing to any employee, independent
contractor, creditor or other party (including, but not limited to, all
interest, additions to tax and penalties thereon, and additions thereto,
and whether or not such item or amount is disputed).
BHC Facilities: any property presently or previously operated by any
member of the BHC Group.
BHC Filings: as defined in Section 2.1.12(c).
BHC Financial Statements: the BHC Parent Financial Statements.
BHC Group: BHC Parent and BHC Parent's direct and indirect Subsidiaries.
BHC Intellectual Property: as defined in Section 2.1.9(a).
BHC Option: each option, warrant or similar right to purchase shares of
BHC Capital Stock, whether or not vested, granted to any Person pursuant to
any BHC Option Plan or otherwise.
BHC Option Holder: as defined in Section 2.1.2(c).
BHC Option Plans: collectively, the Long Term Incentive Plan, Directors'
Stock Option Plan, 1992 Stock Option Plan, and each other stock option
plan, agreement, commitment or arrangement maintained or entered into by
any member of the BHC Group for the benefit of any current or former
officer, director or other employee, of any member of the BHC Group, and
any and all amendments thereto.
BHC Parent: as defined in the introductory paragraph of this Agreement.
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BHC Parent Financial Statements: the consolidated financial statements of
BHC Parent and its Subsidiaries as at and for the years ended December 31,
1996 and 1995, including in each case a balance sheet, a statement of
operations, a statement of changes in stockholders' equity and a statement
of cash flows, together with an audit report thereon by Coopers and
Lybrand, LLP, dated February 14, 1997.
BHC Pension Plan: as defined in section 2.1.16(e).
BHC Permitted Encumbrances: as defined in Section 2.1.7.
BHC Plans: as defined in Section 2.1.16(a).
BHC Registered Broker-Dealers: as defined in Section 2.1.14(a).
BHC Tax Return: any return, report, declaration, form, claim for refund
or information statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof, required to be
filed by or on behalf of any member of the BHC Group.
BHC Taxes: as defined in Section 2.1.6(a).
Business Day: a day other than a Saturday, Sunday or other day on which
commercial banks in New York, New York are authorized or required by law to
close.
Certificate of Merger: as defined in Section 1.2.
Certificates: as defined in Section 1.8(a).
Closing: as defined in Section 1.2.
Closing Date: the date of the Closing.
COBRA: as defined in section 2.1.10(k).
Code: the United States Internal Revenue Code of 1986, as amended.
Commission: the Securities and Exchange Commission.
Common Stock: the Common Stock, par value $.001 per share, of BHC Parent.
Confidentiality Agreement: that certain letter agreement, dated as of
October, 1996, relating to confidential information exchanged between the
Fiserv Group and the BHC Group.
Consent: any consent, approval, authorization, waiver, permit, license,
grant, exemption or order of, or registration, declaration or filing with,
any Person, including but not limited to any Governmental Authority.
Conversion Ratio: As defined in Section 1.5.
DGCL: the General Corporation Law of the State of Delaware, as in effect
from time to time.
Effective Time: as defined in Section 1.2.
Environmental Law: all federal, state, local and foreign statutes,
ordinances, regulations, orders, directives, decrees and other requirements
of law and obligations arising under common law, concerning pollution or
protection of public health or the environment.
ERISA: the Employee Retirement Income Security Act of 1974, as amended.
ERISA Affiliate: as to any Person, any other Person which, together with
such Person, is or has been within the preceding six years treated as a
single employer under section 414(b), (c), (m) or (o) of the Code.
Exchange Act: the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
Exchange Agent: as defined in Section 1.6.
Fiserv: as defined in the introductory paragraph of this Agreement.
Fiserv Acquisition Proposal: as defined in Section 3.2.2.
Fiserv Common Stock: the Common Stock of Fiserv, par value $.01 per
share.
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Fiserv Core Plan: as defined in Section 2.2.10.
Fiserv Employee Options: each option, warrant or similar right to
purchase shares of Fiserv Shares, whether or not vested, granted to any
Person pursuant to any Fiserv Option Plan or otherwise.
Fiserv Filings: as defined in Section 2.2.9(c).
Fiserv Financial Statements: the consolidated balance sheet of Fiserv and
its Subsidiaries as at December 31, 1996 and 1995, and the related
statements of profit and loss, total recognized gains and losses and cash
flows for the years then ended, together with an audit report thereon by
Deloitte & Touche LLP dated January 31, 1997.
Fiserv Group: Fiserv and Fiserv's direct and indirect Subsidiaries.
Fiserv Pension Plan: as defined in section 2.2.10(e).
Fiserv Plan: each written "employee benefit plan," within the meaning of
section 3(3) of ERISA, and each written bonus, incentive or deferred
compensation, stock option or other equity, workers' compensation,
retention, change in control or other employee or retiree compensation or
benefit plan, program or arrangement that is maintained by any member of
Fiserv Group or any ERISA Affiliate thereof or to which any member of the
Fiserv Group or any such ERISA Affiliate contributes or is obligated to
contribute or under which any member of the Fiserv Group may otherwise have
any material liability.
Fiserv Shares: the shares of common stock, $.01 par value, of Fiserv.
Fiserv Sub: as defined in the second recital of this Agreement.
Fiserv Tax Return: any return, report, declaration, form, claim for
refund or information statement relating to Taxes, including any schedule
or attachment thereto, and including any amendment thereof, required to be
filed by or on behalf of any Fiserv Company.
GAAP: as defined in Section 2.1.3.
Governmental Approval: any Consent of, with or to any Governmental
Authority.
Governmental Authority: any nation or government, any state or other
political subdivision thereof, including, without limitation, (i) any
governmental agency, department, commission or instrumentality of the
United States, or any State of the United States, or (ii) any stock
exchange or self-regulatory agency or authority.
Hazardous Substances: "hazardous substances" under any Environmental Law,
"pollutants", "contaminants", or "regulated substances" under any
Environmental Law, or any other substance considered toxic, hazardous, or a
potential threat to public health or the environment, the presence of which
might result in a party incurring liability under any Environmental Law.
HSR Act: the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the rules and regulations thereunder.
Income Tax: any federal, state, local or foreign, net or gross income,
receipts, alternative, minimum, accumulated earnings, personal holding
company, franchise, capital stock, net worth, capital, profits or windfall
profits Tax or other similar Tax, estimated Tax, duty or other governmental
charge or assessment or deficiencies thereof (including, but not limited
to, any liability therefor as a member of a consolidated, combined,
affiliated or unitary group, as a transferee (including under section 6901
of the Code) or pursuant to a tax sharing or tax allocation agreement, all
interest, additions to tax and penalties thereon and additions thereto and
whether or not such item or amount is disputed).
Indebtedness: as applied to any Person, obligations relating to capital
leases, payments in respect of the deferred purchase price of property,
letters of credit, loan agreements and other agreements relating to the
borrowing of money or extension of credit.
Intellectual Property: United States and foreign trademarks, service
marks, trade names, trade dress, domain names, copyrights, and similar
rights, including registrations and applications to register or renew the
registration of any of the foregoing; United States and foreign letters
patent and patent applications; and
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inventions, processes, designs, formulae, trade secrets, know-how,
confidential information, computer software, data and documentation and all
similar intellectual property rights.
IRS: the United States Internal Revenue Service.
Knowledge of BHC Parent: the actual knowledge, after due inquiry, of
William T. Spane, Jr., Lawrence E. Donato, Robert B. Kaplan and Richard M.
Bare.
Knowledge of Fiserv: the actual knowledge, after due inquiry, of George
D. Dalton, Leslie M. Muma, Kenneth R. Jensen and Charles W. Sprague.
Lien: any mortgage, pledge, hypothecation, security interest,
encumbrance, title retention agreement, lien, charge or other similar
restriction.
Material Adverse Effect: with respect to any Person or Persons, a
materially adverse effect on the business, financial condition, prospects,
results of operations or properties of such Person or Persons, taken as a
whole in the event that there is more than one such Person, provided that a
loss or threatened loss of a BHC Client shall be deemed not to be a
material adverse effect. Any reference in this Agreement to "Material
Adverse Effect on the Fiserv Group" shall mean a Material Adverse Effect on
the Fiserv Group, taken as a whole and any reference in this Agreement to
"Material Adverse Effect on the BHC Group" shall mean a Material Adverse
Effect on the BHC Group, taken as a whole.
Merger: as defined in the second recital of this Agreement.
Merger Consideration: as defined in Section 1.5.
Merger Shares: newly issued shares of Fiserv Common Stock that are pari
passu in all respects with Fiserv Shares outstanding as of the date hereof.
NASD: National Association of Securities Dealers, Inc.
NYSE: New York Stock Exchange.
Offering: as defined in Section 3.1.11.
Option Conversion Shares: as defined in section 3.3(a).
Organizational Documents: as to any Person, if a corporation, its
articles or certificate of incorporation or memorandum and articles of
association, as the case may be, and bylaws; if a partnership, its
partnership agreement; and if some other entity, its constituent documents.
PBGC: Pension Benefit Guaranty Corporation.
Person: any natural person or any firm, partnership, limited liability
partnership, association, corporation, limited liability company, trust,
business trust, Governmental Authority or other entity.
Pooling Condition: as defined in Section 3.4(a).
Proxy Statement/Prospectus: the Proxy Statement/Prospectus forming a part
of the Registration Statement.
Reference Date: December 31, 1996.
Registration Statement: the Registration Statement on Form S-4 of Fiserv
to be filed with the Commission in respect of the issuance of shares of
Fiserv pursuant to this Agreement.
Scheduled Closing Date: May 30, 1997 or such other date as the parties
may designate jointly in writing, but not later than September 30, 1997.
Securities Act: the Securities Act of 1933, as amended.
Subsidiary: each corporation or other Person in which a Person owns or
controls, directly or indirectly, capital stock or other equity interests
representing more than 50% of the outstanding voting stock or other equity
interests.
Surviving Corporation: as defined in Section 1.1.
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Tax: any federal, state, local or foreign net or gross income,
alternative, minimum, accumulated earnings, personal holding company,
franchise, doing business, capital stock, net worth, capital, profits,
windfall profits, gross receipts, value added, sales, use, excise, custom,
transfer, registration, stamp, premium, real property, personal property,
ad valorem, intangibles, rent, occupancy, license, occupational,
employment, unemployment, social security, disability, workers'
compensation, payroll, withholding, estimated or other similar tax, duty or
other governmental charge of any kind whatsoever (including, but not
limited to, any liability therefor as a member of a consolidated, combined,
affiliated or unitary group, as a transferee (including under section 6901
of the Code) or pursuant to a tax sharing or tax allocation agreement, all
interest, additions to tax and penalties thereon and additions thereto, and
whether or not any such item or amount is disputed).
Tax Asset: any net operating loss, net capital loss, investment tax
credit, foreign tax credit, charitable deduction or any other credit or tax
attribute that could reduce Taxes through carryovers or carrybacks to other
taxable years (including, without limitation, deductions and credits
related to alternative minimum Taxes).
Transition Period: as defined in section 3.2.8.
6.2. Survival of Representations, Warranties and Covenants. The
representations and warranties, and covenants and other obligations to be
performed prior to or at the Effective Time, contained in this Agreement or in
any certificate delivered in connection herewith shall survive the execution
and delivery of this Agreement but shall not survive the Effective Time, and
any and all breaches of such representations and warranties and covenants and
other obligations shall be deemed to be waived as of the Effective Time,
except that the covenant of Fiserv and Fiserv Sub contained in Section 3.2.7
shall survive until the fifth anniversary of the Effective Time and the
covenant of Fiserv and Fiserv Sub contained in Section 3.2.8 shall survive
until December 31, 1999.
6.3. Expenses; Transfer Taxes. (a) Whether or not the transactions
contemplated by this Agreement shall be consummated, all costs and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby (including, without limitation, fees and disbursements of counsel,
financial advisors and accountants) shall be borne by the party which incurs
such cost or expense; provided, that if this Agreement is terminated pursuant
to Section 5.1(d) or 5.1(e), such party shall pay the costs and expenses
incurred by the other party in connection with this Agreement; and provided,
further, that all costs and expenses related to the preparation, printing,
filing and mailing (as applicable) of the Proxy Statement/Prospectus and all
SEC filing fees incurred in connection with the Proxy Statement/Prospectus
shall be borne equally by BHC Parent, on the one hand, and Fiserv, on the
other hand.
(b) Notwithstanding the foregoing, provided that Fiserv shall not be in
breach of its obligations under this Agreement, if (i) BHC Parent shall have
terminated this Agreement pursuant to Section 5.1(c) and (ii) within six
months of any such termination, BHC Parent shall have entered into, or shall
have publicly announced its intention to enter into, an agreement or an
agreement in principle with respect to any BHC Acquisition Proposal, then BHC
Parent agrees that it will pay Fiserv a termination fee of $2,000,000 in
addition to the amount otherwise payable pursuant to the second provision
contained in Section 6.3(a) above.
6.4. Severability. If any provision of this Agreement is inoperative or
unenforceable for any reason, such circumstances shall not have the effect of
rendering the provision in question inoperative or unenforceable in any other
case or circumstance, or of rendering any other provision or provisions herein
contained invalid, inoperative, or unenforceable to any extent whatsoever. The
invalidity of any one or more phrases, sentences, clauses, Sections or
subsections of this Agreement shall not affect the remaining portions of this
Agreement.
6.5. Notices. All notices, requests, demands waivers, and other
communications made in connection with this Agreement shall be in writing and
shall be (a) mailed by first-class, registered or certified mail, return
receipt requested, postage prepaid, (b) transmitted by hand delivery or
reputable overnight delivery service or (c) sent by telecopy or telegram,
addressed as follows:
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(i) if to Fiserv or Fiserv Sub, to:
Fiserv, Inc.
255 Fiserv Drive
Brookfield, WI 53045
Attention: Kenneth R. Jensen
Senior Executive Vice President and Chief Financial Officer
With a copy to:
Charles W. Sprague
Fiserv, Inc.
255 Fiserv Drive
Brookfield, WI 53045
(ii) if to BHC Parent, to:
BHC Financial, Inc.
One Commerce Square
2500 Market Street, 12th Floor
Philadelphia, PA 19103
Attention: William T. Spane, Jr.
President
With a copy to:
Ballard Spahr Andrews & Ingersoll
1735 Market Street, 51st Floor
Philadelphia, PA 19103
Attention: William H. Rheiner, Esquire
or, in each case, at such other address as may be specified in writing to the
other parties hereto.
All such notices, requests, demands, waivers and other communications shall
be deemed to have been received (w) if by personal delivery on the day of such
delivery, (x) if by first-class, registered or certified mail, on the fifth
Business Day after the mailing thereof, (y) if by reputable overnight delivery
service, on the day delivered, (z) if by telecopy or telegram, on the day on
which such telecopy or telegram was sent, provided that a copy is also sent
that day by a reputable overnight delivery service.
6.6 Miscellaneous.
6.6.1. Headings. The headings contained in this Agreement are for
convenience of reference only and shall not affect the meaning or
interpretation of this Agreement.
6.6.2. Entire Agreement. This Agreement, including the Schedules and
Exhibits, constitutes the entire agreement, and supersede all prior agreements
and understandings, both written and oral, between the parties with respect to
the subject matter hereof.
6.6.3. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original and all of which shall together
constitute one and the same instrument.
6.6.4. Jurisdictional Matters. (a) Governing Law. THIS AGREEMENT SHALL BE
GOVERNED IN ALL RESPECTS, INCLUDING AS TO VALIDITY, INTERPRETATION AND EFFECT,
BY THE INTERNAL LAWS OF THE STATE OF DELAWARE.
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(b) Jurisdiction. FISERV, FISERV SUB AND BHC PARENT HEREBY IRREVOCABLY
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF DELAWARE AND THE
FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE STATE, CITY AND
COUNTY OF DELAWARE SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF
THE PROVISIONS OF THIS AGREEMENT AND OF THE DOCUMENTS REFERRED TO IN THIS
AGREEMENT, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY
ACTION, SUIT OR PROCEEDING FOR THE INTERPRETATION OR ENFORCEMENT HEREOF OR OF
ANY SUCH DOCUMENT, (A) THAT IT IS NOT SUBJECT THERETO OR THAT SUCH ACTION,
SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS,
(B) THAT THE VENUE THEREOF MAY NOT BE APPROPRIATE OR (C) THAT THE INTERNAL
LAWS OF THE STATE OF DELAWARE DO NOT GOVERN THE VALIDITY, INTERPRETATION OR
EFFECT OF THIS AGREEMENT, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL
DISPUTES WITH RESPECT TO SUCH ACTION OR PROCEEDING SHALL BE HEARD AND
DETERMINED IN SUCH A STATE OR FEDERAL COURT. FISERV, FISERV SUB AND BHC PARENT
HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON OF
SUCH PARTIES AND OVER THE SUBJECT MATTER OF ANY SUCH DISPUTE AND AGREE THAT
MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR
PROCEEDING IN THE MANNER PROVIDED IN SECTION 6.5, OR IN SUCH OTHER MANNER AS
MAY BE PERMITTED BY LAW, SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.
(c) Agent. Fiserv hereby appoints Corporation Service Company, Wilmington,
Delaware as its agent for service of legal process in connection with any
matter described in this Section 6.6.4.
6.6.5. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors and
permitted assigns.
6.6.6. Assignment. This Agreement shall not be assignable by any party
hereto without the prior written consent of the other parties hereto,
provided, however, that Fiserv Sub may, with the consent of BHC Parent (which
consent may not be unreasonably withheld or delayed), assign its rights and
obligations under this Agreement to a direct wholly-owned United States
Subsidiary of Fiserv.
6.6.7. No Third Party Beneficiaries. Nothing in this Agreement shall confer
any rights upon any person or entity other than the parties hereto and their
respective heirs, successors and permitted assigns.
6.6.8. Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT, OR THE BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT, OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) IT
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) IT MAKES
THIS WAIVER VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 6.6.8.
6.6.9. Amendment; Waivers. No amendment, modification or discharge of this
Agreement, and no waiver hereunder, shall be valid or binding unless set forth
in writing and duly executed by the party against whom enforcement of the
amendment, modification, discharge or waiver is sought. Any such waiver shall
constitute a waiver only with respect to the specific matter described in such
writing and shall in no way impair the rights of the party granting such
waiver in any other respect or at any other time. Neither the waiver by any of
the parties
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hereto of a breach of or a default under any of the provisions of this
Agreement, nor the failure by any of the parties, on one or more occasions, to
enforce any of the provisions of this Agreement or to exercise any right or
privilege hereunder, shall be construed as a waiver of any other breach or
default of a similar nature, or as a waiver of any of such provisions, rights
or privileges hereunder.
[Remainder of page intentionally left blank.]
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In Witness Whereof, the parties hereto have duly executed this Agreement as
of the date first above written.
BHC Financial, Inc.
By: /s/ William T. Spane, Jr.
---------------------------------
Name: William T. Spane, Jr.
Title: Chairman, Chief Executive
Officer and President
Fiserv Inc.
By: /s/ Leslie M. Muma
---------------------------------
Name: Leslie M. Muma
Title: Vice Chairman, President
Fiserv Delaware Sub, Inc.
By: /s/ Leslie M. Muma
---------------------------------
Name: Leslie M. Muma
Title: Vice Chairman, President
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APPENDIX B
March 2, 1997
BHC Financial, Inc.
One Commerce Square
2005 Market Street
Philadelphia, PA 19103
Members of the Board:
BHC Financial, Inc. ("BHC" or the "Company"), Fiserv, Inc., a Wisconsin
corporation ("Buyer") and Fiserv Delaware Sub, Inc., a Delaware corporation
and wholly-owned subsidiary of Buyer (the "Merger Sub"), have proposed to
enter into an Agreement and Plan of Merger dated as of March 2, 1997 (the
"Agreement").
Pursuant to the Agreement, the Merger Sub will merge with and into BHC and
the holders of all the outstanding shares of BHC's common stock, $.001 par
value per share (the "Common Stock") will receive $33.50 per share in common
stock of the Buyer, subject to receiving pooling accounting treatment. The
Agreement provides that holders of the Common Stock will receive $31.50 in the
common stock of the Buyer in the event that the transaction is accounted for
under the purchase method. The exchange ratio shall be determined by using the
average of the closing prices of the common stock of the Buyer over the 20
trading days ending two trading days prior to closing. You have requested our
opinion as to whether the consideration to be received by the holders of the
Common Stock pursuant to the Agreement is fair, from a financial point of
view, to such holders.
Alex. Brown & Sons Incorporated ("Alex. Brown"), as a customary part of its
investment banking business, is engaged in the valuation of businesses and
their securities in connection with mergers and acquisitions, negotiated
underwritings, private placements and valuations for estate, corporate and
other purposes. We have acted as financial advisor to the Board of Directors
of BHC in connection with the transaction described above and will receive a
fee for our services, a portion of which is contingent upon the consummation
of the Merger. Alex. Brown regularly publishes research reports regarding the
broker-dealer and transaction processing industries and the business and
securities of the Buyer and other publicly owned companies in these
industries. In the ordinary course of business, we may actively trade the
securities of BHC and the Buyer for our own account and the account of our
customers and, accordingly, may at any time hold a long or short position in
securities of BHC and of the Buyer.
In connection with our opinion, we have reviewed certain publicly available
financial information concerning BHC and the Buyer and certain internal
financial analyses and other information furnished to us by BHC. We have also
held discussions with members of the senior management of BHC and the Buyer
regarding the business and prospects of their respective companies and the
joint prospects of a combined company. In addition, we have (i) reviewed the
reported prices and trading activity for the common stock of both BHC and the
Buyer, (ii) compared certain financial and stock market information for BHC
and the Buyer with similar information for certain other companies whose
securities are publicly traded, (iii) reviewed the financial terms of certain
recent business combinations in the securities brokerage industry, (iv)
reviewed the terms of the Agreement and (v) considered such other factors as
we deemed appropriate.
We have not independently verified the information described above and for
purposes of this opinion have assumed the accuracy, completeness and fairness
thereof. With respect to information relating to the prospects of BHC and the
Buyer, we have assumed that such information reflects the best currently
available estimates and judgments of management of BHC and the Buyer as to the
likely future financial performance of their respective companies. In
addition, we have not made nor been provided with an independent evaluation or
appraisal of the assets or liabilities of BHC and the Buyer. We are not
expressing our opinion as to the prices at which the
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Buyer's common stock will trade subsequent to the Merger. Our opinion is based
on market, economic and other conditions as they exist and can be evaluated as
of the date of this letter.
Our opinion expressed herein was prepared for the use of the Board of
Directors of BHC and does not constitute a recommendation to the Company's
stockholders as to whether they should tender Common Stock owned by them. We
hereby consent, however, to the inclusion of this opinion as an exhibit in any
filing made with the Securities and Exchange Commission or in materials
required to be distributed to stockholders of BHC in connection with the
Merger.
Based upon and subject to the foregoing, it is our opinion that, as of the
date of this letter, the consideration to be received by the holders of the
Common Stock pursuant to the Agreement is fair, from a financial point of
view, to such holders.
Very truly yours,
ALEX. BROWN & SONS INCORPORATED
By: /s/ Alex. Brown & Sons Incorporated
---------------------------------------
B-2
April 18, 1997
BHC Financial, Inc.
One Commerce Square
2005 Market Street
Philadelphia, PA 19103
Members of the Board:
This letter will serve to confirm that nothing has come to our attention as
of the date hereof which would cause us to change the form or content of our
opinion in the aforementioned letter. The nature and scope of our
investigation, subsequent to March 2, has been more limited than that
conducted in support of the March 2 opinion.
Very truly yours,
ALEX. BROWN & SONS INCORPORATED
By: /s/ Alex. Brown & Sons Incorporated
---------------------------------------
B-3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
In general, the Wisconsin Business Corporation Law provides that a
corporation shall indemnify directors and officers for all reasonable expenses
incurred in connection with the successful defense of actions arising in
connection with their service as directors and officers of the corporation. In
other cases, the Wisconsin statute provides that the corporation shall
indemnify a director or officer against liability unless the director or
officer breached or failed to perform a duty owed to the corporation and such
breach or failure meets certain specified criteria constituting, in general,
some act of misconduct. In addition, the corporation may reimburse a director
or officer for his expenses in defending against actions as they are incurred
upon the director's or officer's written request accompanied by a written
affirmation of his good faith belief that he has not breached or failed to
perform his duties to the corporation and a written undertaking to repay
amounts advanced if it is ultimately determined that indemnification is not
required under the Wisconsin Business Corporation Law. A court of law may
order that the corporation provide indemnification to a director or officer if
it finds that the director or officer is entitled thereto under the applicable
statutory provision or is fairly and reasonably entitled thereto in view of
all the relevant circumstances, whether or not such indemnification is
required under the applicable statutory provision.
The Wisconsin Business Corporation Law specifies various procedures pursuant
to which a director or officer may establish his right to indemnification.
Provided that it is not determined by or on behalf of the corporation that
the director or officer breached or failed to perform a duty owed to the
corporation and such breach or failure meets certain specified criteria
constituting, in general, some act of misconduct, its articles of
incorporation or bylaws, by written agreement, by resolution of its board of
directors or by a vote of the holders of a majority of its outstanding shares.
The Registrant's Bylaws provide for indemnification and advancement of
expenses of directors and officers to the fullest extent provided by the
Wisconsin Business Corporation Law. This provision is not exclusive of any
other rights to indemnification or the advancement of expenses to which a
director or officer may be entitled to under any written agreement, resolution
of directors, vote of stockholders, by law or otherwise.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT DESCRIPTION
------- -----------
2. Agreement and Plan of Merger dated as of March 2, 1997 among BHC
Financial, Inc., Fiserv, Inc. and Fiserv Delaware Sub, Inc. (Attached
as Appendix A to the Proxy Statement/Prospectus included in this
Registration Statement.)(Schedules to such agreement are not being
filed herewith, but will be provided to the Commission upon its
request, pursuant to Item 604(b)(2) of Regulation S-X.)
3.1 Restated Articles of Incorporation.
3.2 By-laws, (filed as Exhibit 3.2 to Fiserv's Registration Statement on
Form S-4, File No. 33-62870, and incorporated herein by reference).
4.1 Credit Agreement dated as of May 17, 1995 among Fiserv, Inc., the
Lenders Party Thereto, First Bank National Association, as Co-Agent,
and The Bank of New York, as Agent. (Not being filed herewith, but
will be provided to the Commission upon its request, pursuant to Item
601(b)(4)(iii)(A) of Regulation S-K.)
4.2 Note Purchase Agreement dated as of March 15, 1991, as amended, among
Fiserv, Inc., Aid Association for Lutherans, Northwestern National
Life Insurance Company, Northern Life Insurance Company and the North
Atlantic Life Insurance Company of America. (Not being filed herewith,
but will be provided to the Commission upon its request, pursuant to
Item 601(b)(4)(iii)(A) of Regulation S-K.)
4.3 Note Purchase Agreement dated as of April 30, 1990, as amended, among
Fiserv, Inc. and Teachers Insurance and Annuity Association of
America. (Not being filed herewith, but will be provided to the
Commission upon its request, pursuant to Item 601(b)(4)(iii)(A) of
Regulation S-K.)
II-1
EXHIBIT DESCRIPTION
------- -----------
4.4 Note Purchase Agreement dated as of May 17, 1995 among Fiserv, Inc.,
Teachers Insurance Annuity Association of American, Massachusetts
Mutual Life Insurance Company and Aid Association for Lutherans. (Not
being filed herewith, but will be provided to the Commission upon its
request, pursuant to Item 601(b)(4)(iii)(A) of Regulation S-K.)
5. Opinion of Charles W. Sprague.
8. Opinion of Ballard Spahr Andrews & Ingersoll.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Coopers & Lybrand L.L.P.
23.3 Consent of Charles W. Sprague (included in Exhibit 5 hereto).
23.4 Consent of Ballard Spahr Andrews & Ingersoll (included in Exhibit 8
hereto).
23.5 Consent of Alex. Brown & Sons Incorporated (included in Appendix B).
*24. Powers of Attorney.
99. Proxy Card
- --------
*Previously filed.
ITEM 22. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represented a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provision, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11 or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration through the date of
responding to the request.
II-2
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF BROOKFIELD, STATE OF
WISCONSIN, ON THE 17TH DAY OF APRIL, 1997.
FISERV, INC.
By: /s/ Kenneth R. Jensen
---------------------------------
KENNETH R. JENSEN,
SENIOR EXECUTIVE VICE PRESIDENT
AND TREASURER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED:
SIGNATURE TITLE DATE
* Chairman of the April 17, 1997
- ------------------------------------- Board and Director
(GEORGE D. DALTON) (Principal
Executive Officer)
* Vice Chairman, April 17, 1997
- ------------------------------------- President and
(LESLIE M. MUMA) Director
* Senior Executive April 17, 1997
- ------------------------------------- Vice President,
(KENNETH R. JENSEN) Treasurer and
Director (Principal
Financial and
Accounting Officer)
* Vice Chairman, April 17, 1997
- ------------------------------------- President--
(DONALD F. DILLON) Information
Technology, Inc.
and Director
* Director April 17, 1997
- -------------------------------------
(GERALD J. LEVY)
* Director April 17, 1997
- -------------------------------------
(L. WILLIAM SEIDMAN)
* Director April 17, 1997
- -------------------------------------
(THEKLA R. SHACKELFORD)
* Director April 17, 1997
- -------------------------------------
(ROLAND D. SULLIVAN)
*By: /s/ Kenneth R. Jensen
------------------------------
(KENNETH R. JENSEN, INDIVIDUALLY
AND AS ATTORNEY-IN-FACT FOR THE
PERSONS INDICATED)
II-3
EXHIBITS INDEX
EXHIBIT
NUMBER DESCRIPTION
------- -----------
2. Agreement and Plan of Merger dated as of March 2, 1997 among BHC
Financial, Inc., Fiserv, Inc. and Fiserv Delaware Sub, Inc. (Attached
as Appendix A to the Proxy Statement/Prospectus included in this
Registration Statement.)(Schedules to such agreement are not being
filed herewith, but will be provided to the Commission upon its
request, pursuant to Item 604(b)(2) of Regulation S-X.)
3.1 Restated Articles of Incorporation.
3.2 By-laws, (filed as Exhibit 3.2 to Fiserv's Registration Statement on
Form S-4, File No. 33-62870, and incorporated herein by reference).
4.1 Credit Agreement dated as of May 17, 1995 among Fiserv, Inc., the
Lenders Party Thereto, First Bank National Association, as Co-Agent,
and The Bank of New York, as Agent. (Not being filed herewith, but
will be provided to the Commission upon its request, pursuant to Item
601(b) (4) (iii) (A) of Regulation S-K.)
4.2 Note Purchase Agreement dated as of March 15, 1991, as amended, among
Fiserv, Inc., Aid Association for Lutherans, Northwestern National
Life Insurance Company, Northern Life Insurance Company and the North
Atlantic Life Insurance Company of America.(Not being filed herewith,
but will be provided to the Commission upon its request, pursuant to
Item 601(b) (4) (iii) (A) of Regulation S-K.)
4.3 Note Purchase Agreement dated as of April 30, 1990, as amended, among
Fiserv, Inc. and Teachers Insurance and Annuity Association of
America. (Not being filed herewith, but will be provided to the
Commission upon its request, pursuant to Item 601(b) (4) (iii) (A) of
Regulation S-K.)
4.4 Note Purchase Agreement dated as of May 17, 1995 among Fiserv, Inc.,
Teachers Insurance Annuity Association of American, Massachusetts
Mutual Life Insurance Company and Aid Association for Lutherans. (Not
being filed herewith, but will be provided to the Commission upon its
request, pursuant to Item 601(b) (4) (iii) (A) of Regulation S-K.)
5. Opinion of Charles W. Sprague.
8. Opinion of Ballard Spahr Andrews & Ingersoll.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Coopers & Lybrand LLP.
23.3 Consent of Charles W. Sprague (included in Exhibit 5 hereto).
23.4 Consent of Ballard Spahr Andrews & Ingersoll (included in Exhibit 8
hereto).
23.5 Consent of Alex. Brown & Sons Incorporated (included in Appendix B).
*24. Powers of Attorney.
99. Proxy Card
- --------
*Previously filed.