-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SMN3Ne2ftqsGC89l0MMTRpuVYDQ6f1IhrhrftruntyggDPNAmEY7GlxZ8mHBBAJ+ epERpz2m/qBX4gq1yONRrA== 0001045969-03-000975.txt : 20030409 0001045969-03-000975.hdr.sgml : 20030409 20030409172728 ACCESSION NUMBER: 0001045969-03-000975 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20030409 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20030409 FILER: COMPANY DATA: COMPANY CONFORMED NAME: INSURANCE MANAGEMENT SOLUTIONS GROUP INC CENTRAL INDEX KEY: 0001063167 STANDARD INDUSTRIAL CLASSIFICATION: FIRE, MARINE & CASUALTY INSURANCE [6331] IRS NUMBER: 593422536 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-25273 FILM NUMBER: 03644494 BUSINESS ADDRESS: STREET 1: 360 CENTRAL AVENUE CITY: ST PETERSBURG STATE: FL ZIP: 33701 BUSINESS PHONE: 7278032040 MAIL ADDRESS: STREET 1: 360 CENTRAL AVENUE CITY: ST PETERSBURG STATE: FL ZIP: 33701 8-K 1 d8k.txt APRIL 8, 2003 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------------- FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 -------------------- Date of Report: April 9, 2003 --------------------------------- (Date of earliest event reported) Insurance Management Solutions Group, Inc. ------------------------------------------ (Exact name of Registrant as specified in its charter) Florida 000-25273 59-3422536 - ---------------------------- ----------- ---------------- (State or other jurisdiction (Commission (I.R.S. Employer of incorporation) File Number) Identification Number) 801 94th Avenue North St. Petersburg, Florida 33702 ------------------------------------------ ---------------- (Address of principal executive offices) (Zip Code) (727) 803-2040 ----------------------------------------------------------------- (Registrant's telephone number, including area code) Item 5. Other Events. - --------------------- Insurance Management Solutions Group, Inc. (the "Company") is filing this Current Report on Form 8-K to report that, on April 8, 2003, the Company entered into an Agreement and Plan of Merger (the "Merger Agreement") with Fiserv, Inc., a Wisconsin corporation ("Fiserv"), Fiserv Solutions, Inc., a Wisconsin corporation and a wholly-owned subsidiary of Fiserv ("Fiserv Solutions"), and Fiserv Merger Sub, Inc., a Florida corporation and a wholly-owned subsidiary of Fiserv Solutions ("Fiserv Sub"), providing for, among other things, the merger of Fiserv Sub with and into the Company, with the Company as the surviving corporation (the "Merger"). The Merger Agreement contemplates that, pursuant to the Merger, (i) subject to applicable dissenters' rights available under Florida law, each issued and outstanding share of Common Stock, $.01 par value ("Company Common Stock"), of the Company (other than the 8,354,884 shares (the "BIG Shares") of Company Common Stock owned beneficially and of record by Bankers Insurance Company, a Florida corporation ("BIC"), Bankers Security Insurance Company, a Florida corporation ("BSIC"), Bonded Builders Service Corp., a Florida corporation ("BBSC"), and Bankers Insurance Group, Inc., a Florida corporation and the direct or indirect parent corporation of each of BIC, BSIC and BBSC ("BIG" and, collectively with BIC, BSIC and BBSC, the "Principal Shareholders")) would be converted into the right to receive $3.30 in cash, without interest, and (ii) each BIG Share would be converted into the right to receive $3.26 in cash, without interest. As of the date of this Report, the BIG Shares constitute approximately 68.1% of the issued and outstanding shares of Company Common Stock. The transactions contemplated by the Merger Agreement will not be consummated unless certain conditions typical for this type of transaction are either satisfied or waived prior to closing. These conditions include, among other things, that the Merger Agreement and the transactions contemplated thereby are approved (i) by the shareholders of the Company in accordance with Florida law and the Company's Amended and Restated Articles of Incorporation and Amended and Restated Bylaws and (ii) by at least 50.01% of the outstanding shares of Company Common Stock not owned or controlled by the Principal Shareholders. In connection with the Merger Agreement, each of the Principal Shareholders entered into an Agreement to Facilitate Merger with Fiserv, Fiserv Solutions and Fiserv Sub (the "Agreement to Facilitate Merger"), pursuant to which, among other things, the Principal Shareholders have agreed to (i) vote the BIG Shares in favor of the approval and adoption of the Merger Agreement and the transactions contemplated thereby and (ii) accept $3.26 per BIG Share, in cash, pursuant to the Merger. The foregoing description is qualified in its entirety by reference to the Merger Agreement and Agreement to Facilitate Merger, which are attached to this Current Report on Form 8-K as Exhibits 2.1 and 99.1, respectively, and incorporated herein by -2- reference. Item 7. Financial Statements and Exhibits. - ------------------------------------------ (a) Financial statements of business acquired. Not applicable. (b) Pro forma financial information. Not applicable. (c) Exhibits. 2.1 Agreement and Plan of Merger, dated as of April 9, 2003, among Fiserv, Inc., Fiserv Solutions, Inc., Fiserv Merger Sub, Inc. and Insurance Management Solutions Group, Inc. (excluding the exhibits and schedules thereto).* 99.1 Agreement to Facilitate Merger, dated as of April 9, 2003, by and among Fiserv, Inc., Fiserv Solutions, Inc., Fiserv Merger Sub, Inc., Bankers Insurance Group, Inc., Bankers Insurance Company, Bankers Security Insurance Company and Bonded Builders Service Corp. (excluding the schedules thereto).* 99.2 Press Release, dated April 9, 2003. - ------------------ * The exhibits and schedules have been purposely omitted. Copies thereof will be furnished supplementally to the Securities and Exchange Commission upon request. -3- SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. INSURANCE MANAGEMENT SOLUTIONS GROUP, INC. By: /s/ David M. Howard -------------------------------- David M. Howard Chairman, President and Chief Executive Officer Date: April 9, 2003 -4- EXHIBIT INDEX Exhibit No. Description ----------- ----------- 2.1 Agreement and Plan of Merger, dated as of April 9, 2003, among Fiserv, Inc., Fiserv Solutions, Inc., Fiserv Merger Sub, Inc. and Insurance Management Solutions Group, Inc. (excluding the exhibits and schedules thereto).* 99.1 Agreement to Facilitate Merger, dated as of April 9, 2003, by and among Fiserv, Inc., Fiserv Solutions, Inc., Fiserv Merger Sub, Inc., Bankers Insurance Group, Inc., Bankers Insurance Company, Bankers Security Insurance Company an Bonded Builders Service Corp. (excluding the schedules thereto).* 99.2 Press Release, dated April 9, 2003. - -------------------- * The exhibits and schedules have been purposely omitted. Copies thereof will be furnished supplementally to the Securities and Exchange Commission upon request. -5- EX-2.1 3 dex21.txt AGREEMENT AND PLAN OF MERGER Exhibit 2.1 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- AGREEMENT AND PLAN OF MERGER Among FISERV, INC., FISERV SOLUTIONS, INC., FISERV MERGER SUB, INC. And INSURANCE MANAGEMENT SOLUTIONS GROUP, INC. Dated as of April 9, 2003 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- TABLE OF CONTENTS
Page ---- ARTICLE I MERGER ............................................................................... 1 SECTION 1.01 The Merger ............................................................... 1 SECTION 1.02 Articles of Merger ....................................................... 1 SECTION 1.03 Effective Time of the Merger ............................................. 2 ARTICLE II DIRECTORS AND OFFICERS .............................................................. 2 SECTION 2.01 Directors ................................................................ 2 SECTION 2.02 Officers ................................................................. 2 ARTICLE III CONVERSION OF SHARES ............................................................... 2 SECTION 3.01 Conversion of Shares ..................................................... 2 SECTION 3.02 Exchange of Company Common Stock ......................................... 3 SECTION 3.03 Exchange of Fiserv Sub Common Stock ...................................... 4 SECTION 3.04 Dissenting Shares ........................................................ 5 SECTION 3.05 Closing .................................................................. 5 ARTICLE IV CERTAIN EFFECTS OF THE MERGER ....................................................... 5 SECTION 4.01 Effect of the Merger ..................................................... 5 SECTION 4.02 Further Assurances ....................................................... 6 ARTICLE V REPRESENTATIONS AND WARRANTIES ....................................................... 6 SECTION 5.01 Representations and Warranties of the Company ............................ 6 SECTION 5.02 Representations and Warranties of Fiserv, Fiserv Solutions and Fiserv Sub. 29 ARTICLE VI ADDITIONAL COVENANTS AND AGREEMENTS ................................................. 32 SECTION 6.01 Conduct of Business ...................................................... 32 SECTION 6.02 Access to Information by Fiserv, Fiserv Solutions and Fiserv Sub ......... 33 SECTION 6.03 Consents and Authorizations .............................................. 33 SECTION 6.04 Non-Assignable Licenses, Leases and Contracts ............................ 33 SECTION 6.05 Employee Matters ......................................................... 33 SECTION 6.06 Taxes .................................................................... 34 SECTION 6.07 Solicitation of Alternative Transaction .................................. 34 SECTION 6.08 Proxy Material ........................................................... 36 SECTION 6.09 Shareholders' Meetings ................................................... 37 SECTION 6.10 State Takeover Statutes .................................................. 38 SECTION 6.11 Shareholder Litigation ................................................... 38 SECTION 6.12 Confidentiality .......................................................... 38 SECTION 6.13 Further Actions .......................................................... 39 SECTION 6.14 Notification of Certain Matters .......................................... 39 SECTION 6.15 Voting of Shares ......................................................... 39
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Page ---- SECTION 6.16 Indemnification .......................................................... 39 SECTION 6.17 Officer and Director Insurance ........................................... 41 SECTION 6.18 Deposit of Aggregate Merger Consideration ................................ 41 ARTICLE VII CONDITIONS PRECEDENT ............................................................... 41 SECTION 7.01 Conditions to Obligations of Fiserv, Fiserv Solutions, Fiserv Sub, and the Company .............................................................. 41 SECTION 7.02 Conditions Precedent to the Obligations of Fiserv, Fiserv Solutions and Fiserv Sub ............................................................... 42 SECTION 7.03 Conditions Precedent to the Obligations of the Company ................... 43 ARTICLE VIII TERMINATION; AMENDMENT; WAIVER .................................................... 44 SECTION 8.01 Termination .............................................................. 44 SECTION 8.02 Effect of Termination .................................................... 46 SECTION 8.03 Amendment ................................................................ 47 SECTION 8.04 Extension; Waiver ........................................................ 47 ARTICLE IX MISCELLANEOUS ....................................................................... 48 SECTION 9.01 Expenses, Etc ............................................................ 48 SECTION 9.02 Execution in Counterparts ................................................ 48 SECTION 9.03 Notices .................................................................. 48 SECTION 9.04 Entire Agreement ......................................................... 49 SECTION 9.05 Applicable Law ........................................................... 49 SECTION 9.06 Binding Effect; Benefits ................................................. 50 SECTION 9.07 Investigation; Non-Survival of Representations and Warranties ............ 50 SECTION 9.08 Specific Performance ..................................................... 50 SECTION 9.09 Assignability ............................................................ 50 SECTION 9.10 Prevailing Party ......................................................... 50 SECTION 9.11 Public Announcements ..................................................... 50 SECTION 9.12 Invalid Provisions ....................................................... 51 SECTION 9.13 Interpretation ........................................................... 51
-ii- INDEX TO EXHIBITS Exhibit Description A Articles of Merger B Form of Agreement to Facilitate Merger C Form of Opinion of Counsel to the Company D Form of FIRPTA Affidavit of the Company E Required Consents F Form of Opinion of Counsel to Fiserv, Fiserv Solutions and Fiserv Sub INDEX TO SCHEDULES Schedule Description I Disclosure Schedule AGREEMENT AND PLAN OF MERGER AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of April 9, 2003, among FISERV, INC., a Wisconsin corporation ("Fiserv"), FISERV SOLUTIONS, INC., a Wisconsin corporation ("Fiserv Solutions") and a wholly-owned subsidiary of Fiserv, FISERV MERGER SUB, INC., a Florida corporation ("Fiserv Sub") and a wholly-owned subsidiary of Fiserv Solutions, and INSURANCE MANAGEMENT SOLUTIONS GROUP, INC., a Florida corporation (the "Company"). W I T N E S S E T H: WHEREAS, as of December 31, 2002, the Company had issued and outstanding 12,276,063 shares of common stock, par value $0.01 per share (the "Company Common Stock" or "Shares"); and WHEREAS, Fiserv, Fiserv Solutions and Fiserv Sub desire that Fiserv Sub merge with and into the Company and, to realize the benefits thereof, the Company also desires that Fiserv Sub merge with and into the Company (the "Merger"), upon the terms and subject to the conditions set forth herein and in accordance with the Florida Business Corporation Act (the "Florida Law"), and that each outstanding share of Company Common Stock, excluding any such shares held in the treasury of the Company, be converted into the right to receive cash, without interest, as provided herein (Fiserv Sub and the Company being hereinafter sometimes referred to as the "Constituent Corporations" and the Company, after the Merger as the surviving entity, being hereinafter sometimes referred to as the "Surviving Corporation"); NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants, agreements and conditions contained herein, and in order to set forth the terms and conditions of the Merger and the mode of carrying the same into effect, the parties hereby agree as follows: ARTICLE I MERGER SECTION 1.01 The Merger. At the Effective Time (as hereinafter defined), Fiserv Sub shall be merged with and into the Company on the terms and conditions hereinafter set forth as permitted by and in accordance with the Florida Law. Thereupon, the separate existence of Fiserv Sub shall cease, and the Company, as the Surviving Corporation, shall continue to exist under and be governed by the Florida Law. The Amended and Restated Articles of Incorporation and Amended and Restated Bylaws of the Company, each as in effect at the Effective Time shall be the articles of incorporation and bylaws of the Surviving Corporation until amended in accordance with the provisions thereof and applicable law. SECTION 1.02 Articles of Merger. As soon as practicable following satisfaction or waiver of the conditions specified in Article VII hereof, and provided that this Agreement has not been terminated and abandoned pursuant to Article VIII hereof, the Company and Fiserv Sub will cause the Articles of Merger in substantially the form of Exhibit A attached hereto (the "Articles of Merger") to be executed and filed with the Secretary of State of the State of Florida as provided under the Florida Law. SECTION 1.03 Effective Time of the Merger. The Merger shall become effective upon the filing of the Articles of Merger with the Secretary of State of the State of Florida or at such other date or time thereafter as the parties may agree in writing and as shall be provided in the Articles of Merger. The date and time of such effectiveness is herein sometimes referred to as the "Effective Time". ARTICLE II DIRECTORS AND OFFICERS SECTION 2.01 Directors. From and after the Effective Time, the members of the Board of Directors of the Surviving Corporation shall consist of the members of the Board of Directors of Fiserv Sub (as constituted immediately prior to the Effective Time) until changed in accordance with the Amended and Restated Articles of Incorporation and Amended and Restated Bylaws of the Surviving Corporation and applicable law. SECTION 2.02 Officers. From and after the Effective Time, the officers of the Surviving Corporation shall consist of the officers of the Company (as constituted immediately prior to the Effective Time) until changed in accordance with the Amended and Restated Articles of Incorporation and Amended and Restated Bylaws of the Surviving Corporation and applicable law. ARTICLE III CONVERSION OF SHARES SECTION 3.01 Conversion of Shares. (a) Upon the Effective Time, (i) each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than the 8,354,884 shares (the "BIG Shares") of Company Common Stock owned beneficially and of record by Bankers Insurance Company, a Florida corporation ("BIC"), Bankers Security Insurance Company, a Florida corporation ("BSIC"), Bonded Builders Service Corp., a Florida corporation ("BBSC"), and Bankers Insurance Group, Inc., a Florida corporation and the parent of BIC, BSIC and BBSC ("BIG" and, collectively with BIC, BSIC and BBSC, the "Principal Shareholders"), and other than any shares of Company Common Stock to be canceled pursuant to Section 3.01(b) and any Dissenting Shares (as hereinafter defined)) shall, without any further action, be converted into the right to receive $3.30 in cash, without interest, and (ii) each BIG Share shall, without any further action, be converted into the right to receive $3.26 in cash, without interest (such cash payments, collectively, the "Merger Consideration"). -2- (b) All shares of Company Common Stock owned by the Company or any direct or indirect wholly-owned subsidiary of the Company or Fiserv, Fiserv Solutions or Fiserv Sub or any other subsidiary of Fiserv immediately prior to the Effective Time shall be cancelled and extinguished without any conversion thereof. (c) Each share of common stock of Fiserv Sub, par value $.01 per share ("Fiserv Sub Common Stock"), issued and outstanding immediately prior to the Effective Time shall be converted into one share of the common stock of the Surviving Corporation, par value $.01 per share ("Surviving Corporation Common Stock"). SECTION 3.02 Exchange of Company Common Stock. (a) As soon as reasonably practicable, but in no event more than five days after the Effective Time, Fiserv shall cause Fiserv's stock transfer agent or such other person as Fiserv may reasonably appoint to act as paying agent (the "Paying Agent") to mail to each holder of record (other than Fiserv, Fiserv Solutions, Fiserv Sub or any other subsidiary of Fiserv or the Company) of a certificate or certificates that immediately prior to the Effective Time represented outstanding shares of Company Common Stock ("Company Certificates") (i) a form letter of transmittal (which shall specify that delivery shall be effective, and risk of loss and title to the Company Certificate(s) shall pass, only upon delivery of the Company Certificate(s) to the Paying Agent) and (ii) instructions for such holder's use in effecting the surrender of the Company Certificates in exchange for payment of the Merger Consideration. Prior to or contemporaneously with the Effective Time, Fiserv shall cause to be deposited with the Paying Agent amounts sufficient in the aggregate to provide all funds necessary for the Paying Agent to make payments pursuant to Section 3.01(a) to holders of Company Common Stock issued and outstanding immediately prior to the Effective Time who are to receive the Merger Consideration. (b) Upon surrender to the Paying Agent of one or more Company Certificates for cancellation, together with a duly-executed letter of transmittal, the Paying Agent shall distribute to the holder of such Company Certificate(s) a bank check (or other immediately available funds) in the amount of cash into which the shares of Company Common Stock represented by the Company Certificate(s) shall have been converted pursuant to Section 3.01(a), and the Company Certificate(s) so surrendered shall be canceled. In the event of a transfer of ownership of Company Common Stock that is not registered in the transfer records of the Company, it shall be a condition to the payment of the Merger Consideration that the Company Certificate(s) so surrendered shall be properly endorsed or be otherwise in proper form for transfer and that such transferee shall (i) pay to the Paying Agent any transfer or other taxes required, or (ii) establish to the reasonable satisfaction of the Paying Agent that such tax has been paid or is not payable. -3- (c) After the Effective Time, there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Company Certificates representing such shares are presented to the Surviving Corporation, they shall be canceled and exchanged as provided in this Article III. As of the Effective Time, the holders of Company Certificates representing shares of Company Common Stock shall cease to have any rights as shareholders of the Company, except such rights, if any, as they may have pursuant to the Florida Law. Except as provided above, until such Company Certificates are surrendered for exchange, each such Company Certificate shall, after the Effective Time, represent for all purposes only the right to receive the cash value of such Shares as provided in Section 3.01(a) hereof. (d) In the event any Company Certificate shall have been lost, stolen, or destroyed, the Paying Agent shall issue in exchange for such lost, stolen, or destroyed Company Certificate, upon the making of an affidavit of that fact by the holder thereof, such cash as may be required pursuant to Section 3.01(a); provided, however, that Fiserv may, in its reasonable discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen, or destroyed Company Certificates to deliver a bond in such sum as Fiserv may reasonably direct (but in no event in an amount greater than the amount of cash to which such owner is entitled pursuant to Section 3.01(a)) as indemnity against any claim that may be made against Fiserv or the Paying Agent with respect to such Company Certificates alleged to have been lost, stolen, or destroyed. (e) Notwithstanding anything to the contrary in this Section 3.02, none of Fiserv, Fiserv Solutions or the Surviving Corporation shall be liable to a holder of shares of Company Common Stock for any amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar law. SECTION 3.03 Exchange of Fiserv Sub Common Stock. From and after the Effective Time, each outstanding certificate previously representing shares of Fiserv Sub Common Stock shall be deemed for all purposes to evidence ownership of and to represent the number of shares of Surviving Corporation Common Stock into which such shares of Fiserv Sub Common Stock shall have been converted. Promptly after the Effective Time, the Surviving Corporation shall issue to Fiserv a stock certificate or certificates representing such shares of Surviving Corporation Common Stock in exchange for the certificate or certificates that formerly represented shares of Fiserv Sub Common Stock, which shall be canceled. SECTION 3.04 Dissenting Shares. (a) No Conversion. Notwithstanding any provision of this Agreement to the contrary, any shares of Company Common Stock held by a shareholder who has demanded and perfected dissenters' rights for such shares in accordance with the Florida Law, including Sections 607.1301, 607.1302 and 607.1320 of the Florida Law, and who has not effectively withdrawn or lost such appraisal or -4- dissenters' rights ("Dissenting Shares") shall not be converted into or represent the right to receive the Merger Consideration pursuant to Section 3.01(a), but the holder thereof shall only be entitled to such rights as are granted by the Florida Law. (b) Withdrawal or Loss of Dissenters' Rights. Notwithstanding the provisions of Section 3.04(a), if any holder of shares of Company Common Stock who is otherwise entitled to exercise dissenters' rights under the Florida Law shall effectively withdraw or lose (through failure to exercise, perfect or otherwise) such dissenters' rights, then, as of the later of the Effective Time and the occurrence of such event, such shareholder's shares shall automatically be converted into and represent only the right to receive the Merger Consideration, without interest thereon, upon surrender of the Company Certificate(s) representing such shares. (c) Notice, etc. The Company shall give Fiserv and Fiserv Solutions (i) prompt notice of any written demands for the exercise of dissenters' rights in respect of any shares of Company Common Stock, withdrawals of such demands, and any other similar instruments served pursuant to the Florida Law (including instruments concerning dissenters' rights) and received by the Company and (ii) the opportunity to participate in all negotiations and proceedings with respect to such demands. The Company shall not, except with the prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned) of Fiserv and Fiserv Solutions, or as may be required by applicable law, voluntarily make any payment with respect to any demands for the exercise of dissenters' rights in respect of any shares of Company Common Stock or offer to settle or settle any such demands. SECTION 3.05 Closing. The closing of the transactions contemplated by this Agreement (the "Closing") shall take place (a) at the offices of Fiserv, 255 Fiserv Drive, Brookfield, WI 53045 at 10 a.m., local time, not later than the third business day after the date on which the last of the conditions set forth in Article VII hereof is satisfied or waived or (b) at such other time and place as the parties hereto may agree in writing. ARTICLE IV CERTAIN EFFECTS OF THE MERGER SECTION 4.01 Effect of the Merger. The Merger shall have the effects set forth in this Agreement and under the applicable provisions of the Florida Law. SECTION 4.02 Further Assurances. If at any time after the Effective Time the Surviving Corporation shall reasonably determine that any further deeds, assignments or assurances in law or any other acts are necessary, desirable or proper (a) to vest, perfect or confirm, of record or otherwise, in the Surviving Corporation, the title to any property or right of the Constituent Corporations acquired or to be acquired by reason of, or as a result of, the Merger, or (b) otherwise to carry out the purposes of this Agreement, the Constituent Corporations agree that the Surviving Corporation and its proper officers and -5- directors shall and will execute and deliver all such property, deeds, assignments and assurances in law and do all acts necessary, desirable or proper to vest, perfect or confirm title to such property or rights in the Surviving Corporation or otherwise to carry out the purposes of this Agreement, and that the proper officers and directors of the Constituent Corporations and the proper officers and directors of the Surviving Corporation are fully authorized in the name of the Constituent Corporations or otherwise to take any and all such action. ARTICLE V REPRESENTATIONS AND WARRANTIES SECTION 5.01 Representations and Warranties of the Company. Except as otherwise set forth in the Company SEC Reports (as hereinafter defined) or in Disclosure Schedule (the "Disclosure Schedule") annexed hereto as Schedule I, the Company represents and warrants to Fiserv, Fiserv Solutions and Fiserv Sub as follows: (a) Organization and Qualification, etc. The Company is a corporation duly organized, validly existing and of active status under the laws of the State of Florida, has corporate power and authority to own all of its properties and assets and to carry on its business as it is now being conducted, and is duly qualified to do business and is in good standing as a foreign corporation in each other jurisdiction as set forth in the Disclosure Schedule where the nature of the Company's business in such jurisdiction requires such qualification and the failure to so qualify would have a Material Adverse Effect (as hereinafter defined) on the Company. The copies of the Company's Amended and Restated Articles of Incorporation and Amended and Restated Bylaws, as amended to date, which have been delivered or made available to Fiserv and Fiserv Solutions, are complete and correct, and such instruments, as amended to date, are in full force and effect at the date hereof. "Material Adverse Effect" for purposes of this Agreement when used with respect to any party means any change in, or effect on, or series of related changes in, or related effects on, the business of such party as currently conducted by such party and its subsidiaries, taken as a whole, that is materially adverse to its results of operations or financial condition before giving effect to the transactions contemplated by this Agreement; provided, however, that any such change(s) or effect(s) resulting from (i) any change(s) in the economy or securities markets of the United States (or any region thereof) in general, (ii) any change(s) in the insurance or insurance administration industries in general, or (iii) the execution and delivery of this Agreement, the transactions contemplated hereby or the announcement thereof shall not be considered when determining if a Material Adverse Effect has occurred (b) Capital Stock. (i) The authorized capital stock of the Company consists of 20,000,000 shares of Preferred Stock, par value $0.01 per share (the -6- "Preferred Stock"), and 100,000,000 shares of Company Common Stock, of which as of the date hereof no shares of Preferred Stock and 12,276,063 shares of Company Common Stock were validly issued and outstanding, fully paid and nonassessable. No shares of Company Common Stock or Preferred Stock are held in the treasury by the Company. (ii) There are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed any shares of the capital stock of the Company or obligating the Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or other similar rights with respect to the Company. Except as contemplated by this Agreement, there are no voting trusts, proxies or other agreements or understandings with respect to the capital stock of the Company to which the Company is a party. (c) Subsidiaries. Except for the Subsidiaries (as hereinafter defined), the Company does not own of record or beneficially, directly or indirectly, (i) any shares of outstanding capital stock or securities convertible into capital stock of any other corporation or (ii) any participating interest in any general or limited partnership, limited liability partnership, limited liability company, joint venture or other non-corporate business enterprise. The Company owns directly all the outstanding capital stock of the subsidiaries listed in Section 5.01(c) of the Disclosure Schedule (the "Subsidiaries") (except for directors' qualifying shares, if any), free and clear of all encumbrances other than Permitted Exceptions (as hereinafter defined). The capital stock of each Subsidiary is duly authorized and validly issued and outstanding, fully paid and nonassessable. No Subsidiary has issued or sold any shares of its capital stock or any securities or obligations convertible into or exchangeable for, or given any person any right to acquire from such Subsidiary, any shares of its capital stock, and no such securities or obligations are outstanding. Each Subsidiary is a corporation duly organized, validly existing and in good standing or of active status under the laws of its jurisdiction of organization, and has the corporate power and authority to own and hold its properties and to carry on its business as currently conducted. The copies of the articles or certificates of incorporation and by-laws (or, where applicable, other such similar governance documents) of each Subsidiary, as amended to date, which have been delivered to Fiserv were complete and correct, and such instruments, as so amended, are in full force and effect at the date hereof. For purposes of this Section 5.01, the term "Company" shall be deemed to include the Subsidiaries except in Section 5.01(a) through Section 5.01(g) (inclusive) and Section 5.01(y) and except where otherwise noted. -7- (d) Authority Relative to Agreement. The Company has the corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated on the part of the Company hereby. The execution and delivery by the Company of this Agreement, and the consummation by the Company of the transactions contemplated on its part hereby, have been duly authorized by its Board of Directors. No other corporate action on the part of the Company (other than Shareholder Approval (as hereinafter defined)) or any Subsidiary is necessary to authorize the execution and delivery of this Agreement by the Company, and, subject to obtaining the Company Shareholder Approval, no other corporate action on the part of the Company or any Subsidiary is necessary to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by the other parties hereto, is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as such enforcement is subject to the effect of (i) any applicable bankruptcy, insolvency, reorganization or similar laws relating to or affecting creditors' rights generally and (ii) general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and other similar doctrines affecting the enforceability of agreements generally (regardless of whether considered in a proceeding in equity or at law). (e) Non-Contravention. The execution and delivery of this Agreement by the Company do not and the consummation by the Company of the transactions contemplated hereby will not (i) violate any provision of the Amended and Restated Articles of Incorporation or Amended and Restated Bylaws of the Company or the Articles or Certificate of Incorporation or Bylaws of any of its Subsidiaries, (ii) violate applicable requirements of the Exchange Act (as hereinafter defined), state takeover or securities laws, the rules of Nasdaq (as hereinafter defined), (iii) violate, or result, with the giving of notice or the lapse of time or both, in a violation of, any provision of, or result in the acceleration of or entitle any party to accelerate (whether after the giving of notice or lapse of time or both) any obligation under, or result in the creation or imposition of any material lien, charge, pledge, security interest or other encumbrance upon any of the property of the Company or any of its Subsidiaries pursuant to any provision of, any mortgage or lien or material lease, agreement, license or instrument or any order, arbitration award, judgment or decree to which the Company or any of its Subsidiaries is a party or by which any of its assets is bound, and do not and will not violate or conflict with any other material restriction of any kind or character to which the Company or any of its Subsidiaries is subject or by which any of its assets may be bound, and the same does not and will not constitute an event permitting termination of any such mortgage or lien or material lease, agreement, license or instrument to which the Company or any of its Subsidiaries is a party or (iv) violate any other law, ordinance or regulation to which the Company or any of its Subsidiaries is subject, except in each case or cases, for any such violations, acceleration, creation, imposition, conflict or termination which would not, individually or in the aggregate, reasonably be expected to have an Adverse -8- Effect (as hereinafter defined) on the Company. Under applicable law, the current Amended and Restated Articles of Incorporation of the Company and Nasdaq rules, the affirmative vote of the holders of a majority of the outstanding shares of Company Common Stock is the only vote required for the shareholders of the Company to approve the Merger (the "Company Shareholder Approval"). "Adverse Effect" means any change in, or effect on, or series of related changes in, or related effects on, the business of the Company as currently conducted that would result in damages or liability of the sum of $250,000 or more. (f) Government Approvals. Except for (i) the filing of the Articles of Merger with the Secretary of State of the State of Florida and (ii) applicable requirements of the Exchange Act, state takeover or securities laws and the rules of Nasdaq, no consent, authorization, order or approval of, or filing or registration with, any governmental commission, board or other regulatory body is required for the execution and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby, except (x) as may be necessary as a result of any facts or circumstances relating solely to Fiserv, Fiserv Solutions or Fiserv Sub or (y) where the failure to obtain such consents, authorizations or approvals or to make such filings or registrations would not prevent the consummation of the transactions contemplated hereby. (g) Company SEC Reports. The Company has filed with the Securities and Exchange Commission (the "SEC"), at or prior to the time due (or within the time prescribed by Rule 12b-25 under the Exchange Act), and has heretofore made available to Fiserv and Fiserv Solutions, true and complete copies of, all forms, reports, schedules, registration statements and definitive proxy statements (together with all information incorporated therein by reference, the "Company SEC Reports") required to be filed by it with the SEC since January 1, 2000. As of their respective dates, the Company SEC Reports complied in all material respects with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934, as amended (the "Exchange Act") or the Securities Act of 1933, as amended (the "Securities Act"), as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports and the information contained in the Company SEC Reports fairly presented, in all material respects, the financial condition and results of operations of the Company. As of their respective dates and as of the date any information from such Company SEC Reports has been incorporated by reference, the Company SEC Reports did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (h) Financial Statements. The Company's SEC Reports contain consolidated audited balance sheets of the Company as of December 31, 2001 and December 31, 2002, and the related consolidated audited statements of income, shareholders' equity and cash flows for the periods then ended, certified by Grant Thornton LLP, the certified public accounting firm retained by the Company -9- (collectively, the "Company Financial Statements"). The Company Financial Statements have been prepared in accordance with GAAP consistently applied (except as otherwise indicated therein) and present fairly the financial position and results of operations of the Company and its Subsidiaries as of and for the respective periods then ended. In addition, the Company has provided or otherwise made available to Fiserv and Fiserv Solutions all "management letters" or similar letters addressing the integrity of the Company's consolidated financial statements and/or its financial controls issued by the Company's certified public accounting firm with respect to, and for the years included in, the audited Company Financial Statements. (i) Absence of Certain Changes or Events. Since December 31, 2002, the Company has not: (i) incurred any obligation or liability (fixed or contingent), except normal trade or business obligations incurred in the ordinary course of business and consistent with past practice; (ii) discharged or satisfied any lien, security interest or encumbrance or paid any obligation or liability (fixed or contingent), other than in the ordinary course of business and consistent with past practice; (iii) mortgaged, pledged or subjected to any lien, security interest or other encumbrance any of its assets or properties (other than Permitted Exceptions (as hereinafter defined)), other than in the ordinary course of business and consistent with past practice; (iv) transferred, leased or otherwise disposed of any of its assets or properties or acquired any assets or properties, other than in any case in the ordinary course of business and consistent with past practice; (v) cancelled or compromised any debt or claim, other than in the ordinary course of business and consistent with past practice; (vi) waived or released, under any contract, rights of the Company having value to the Company, other than in any case in the ordinary course of business and consistent with past practice; (vii) transferred or granted any rights under any concessions, leases, licenses, agreements or Intellectual Property (as hereinafter defined), other than in the ordinary course of business and consistent with past practice; (viii) other than in the ordinary course of business and consistent with past practice, made or granted any wage or salary increase applicable to any group or classification of employees generally, paid any bonuses, entered into any employment contract with any officer or employee or -10- made any loan to, or entered into any transaction of any other nature with, any officer or employee of the Company; (ix) entered into any transaction, contract or commitment, except those listed, or which pursuant to the terms hereof are not required to be listed, on the Disclosure Schedule, this Agreement and the transactions contemplated hereby, and those entered into in the ordinary course of business and consistent with past practice; (x) declared, paid or made any provision for payment of any dividends or other distribution in respect of shares of Company Common Stock, or directly or indirectly, acquired, purchased, redeemed or made any provision for acquiring, purchasing or redeeming any shares of Company Common Stock; (xi) suffered any casualty loss or damage (whether or not such loss or damage shall have been covered by insurance) which affects in any material respect its ability to conduct its business; (xii) amended or changed the Amended and Restated Articles of Incorporation or Amended and Restated Bylaws of the Company; (xiii) suffered any labor trouble or claim of wrongful discharge, discrimination or other unlawful labor practice or action; (xiv) changed any accounting method or practice (including any change in depreciation or amortization policies or rates); (xv) commenced, or threatened to commence, any material lawsuit or proceeding against a third party; (xvi) received any notice of any claim of ownership by a third party of the Company's Intellectual Property or of infringement by the Company of any third party's Intellectual Property rights; (xvii) agreed to do any of the things described in the preceding clauses (i) through (xvi) (other than with Fiserv, Fiserv Solutions, Fiserv Sub and their representatives); or (xviii) suffered any Material Adverse Effect. "Permitted Exceptions" shall mean (i) mechanic's, materialman's, warehouseman's and carrier's liens and purchase money security interests arising in the ordinary course of business; (ii) liens for Taxes not yet payable; (iii) liens for Taxes, the validity of which the Company is contesting in good faith; (iv) zoning, entitlement, building and other land use regulations; (v) covenants, conditions, restrictions, easements and other similar matters of record; (vi) liens for workers compensation, unemployment insurance and other benefits incurred -11- in the ordinary course of business; and (vii) imperfections of title, liens, security interests, claims and other charges and encumbrances the existence of which would not reasonably be expected to have individually or in the aggregate an Adverse Effect on the Company. (j) Title to Properties; Absence of Liens and Encumbrances, etc. The Company has good and valid title to all of the real, tangible, personal and mixed properties and assets owned by it and used in its business, free and clear of any liens, charges, pledges, security interests or other encumbrances (other than Permitted Exceptions), except as reflected in the Company Financial Statements. The Company's intangible properties and assets (excluding leasehold interests and any intangible properties and assets described in Section 5.01(k), which section contains the Company's representations and warranties with respect to such intangible properties and assets) are free and clear of any liens, charges, pledges, security interests or other encumbrances (other than Permitted Exceptions), except as reflected in the Company Financial Statements. (k) Intellectual Property. (i) Definitions. For all purposes of this Agreement, the following terms shall have the following respective meanings: (A) "Technology" means any or all of the following: (I) works of authorship including computer programs, algorithms, routines, source code and executable code, whether embodied in software or otherwise, documentation, designs, files, records and data; (II) inventions (whether or not patentable), improvements and technology; (III) proprietary and confidential information, including technical data and customer and supplier lists, trade secrets, show how, know how and techniques; (IV) databases, data compilations and collections and technical data; (V) processes, tools, devices, methods, prototypes, schematics, bread boards, net lists, mask works, test methodologies and hardware development tools; and all instantiations of the foregoing in any form and embodied in any media. (B) "Intellectual Property Rights" means any or all of the following and all rights in, arising out of, or associated therewith: (I) all United States and foreign patents and utility models and applications therefore and all reissues, divisions, re-examinations, renewals, extensions, provisionals, continuations and continuations-in-part thereof, and equivalent or similar rights anywhere in the world in inventions and discoveries including without limitation invention disclosures ("Patents"); (II) all trade secrets and other rights in the know-how and confidential or proprietary information ("Trade Secrets"); (III) all copyrights, copyrights registrations and applications therefor and all other -12- rights corresponding thereto throughout the world ("Copyrights"); (IV) all industrial designs and any registrations and applications therefor throughout the world; (V) all rights in World Wide Web addresses and domain names and applications and registrations therefor, all trade names, trade dress, logos, common law trademarks and service marks, trademark and service mark registrations and applications therefor and all goodwill associated therewith throughout the world ("Trademarks"); and (VI) any similar, corresponding or equivalent rights to any of the foregoing anywhere in the world. (C) "Company Intellectual Property" means any Technology and Intellectual Property Rights including the Company Registered Intellectual Property Rights (as hereinafter defined) that are owned by, or exclusively licensed to, the Company. (D) "Registered Intellectual Property Rights" means all United States, international and foreign: (I) Patents, including applications therefor; (II) registered Trademarks, applications to register Trademarks, including intent-to-use applications, or other registrations or applications related to Trademarks; (III) Copyrights registrations and applications to register Copyrights; and (IV) any other Technology that is the subject of an application, certificate, filing, registration or other document issued by, filed with, or recorded by, any state, government or other public legal authority at any time. (E) "Governmental Entity" means any national, federal, state, municipal or local or other government, governmental, regulatory or administrative authority, agency or commission or any court, tribunal or judicial or arbitral body. (ii) Company Products. Section 5.01(k)(ii) of the Disclosure Schedule contains a complete and accurate list (by name and version number) of all products, software or service offerings of the Company (collectively, the "Company Products") that have been sold, distributed or otherwise disposed of in the one-year period preceding the date hereof, including any material products, software or service offerings currently under development. (iii) Registered Intellectual Property Rights. Section 5.01(k)(iii) of the Disclosure Schedule lists all Registered Intellectual Property Rights owned by, filed in the name of or applied for by the Company as of the date of this Agreement (the "Company Registered Intellectual Property Rights") and lists any proceedings or actions (excluding prosecutions), to the knowledge of the Company, before any court or tribunal (including the -13- United States Patent and Trademark Office (the "PTO") or equivalent authority anywhere in the world) related to any of the Company Intellectual Property Rights or Company Intellectual Property. To the Company's knowledge, necessary documents and certificates in connection with such Company Registered Intellectual Property Rights have been filed with the PTO or the United States Copyright Office or equivalent authorities in foreign jurisdictions, as the case may be, for the purposes of maintaining the Registered Intellectual Property Rights embodied in any Company Intellectual Property, except where the failure to make such filings would not reasonably be expected in the aggregate to have an Adverse Effect on the Company. As of the Effective Time, there will be no actions that must be taken by the Company within 120 days of the Effective Time in order to obtain, perfect, preserve, renew or maintain the Registered Intellectual Property, including the payment of any registration, maintenance or renewal fees or the filing of any responses to PTO office actions, documents, applications or certificates. The Company has not claimed "small business status" in the application for, or registration of, any Company Intellectual Property that would not be applicable to Fiserv, Fiserv Solutions and/or Fiserv Sub. (iv) Valid Assignment. In each case in which the Company has acquired any Company Intellectual Property from any person, the Company has obtained a valid and enforceable assignment sufficient to irrevocably transfer all rights in such Company Intellectual Property (including the right to seek past and future damages with respect thereto) to the Company, except where the failure to obtain such assignments would not reasonably be expected in the aggregate to have an Adverse Effect on the Company. The Company has recorded each such assignment of a Registered Intellectual Property Right assigned to the Company with the PTO or the United States Copyright Office or equivalent authorities outside the United States. (v) No Invalidity, Etc. The Company has no knowledge that any of the Company Intellectual Property is invalid or unenforceable. To the Company's knowledge, no person is infringing or misappropriating any Company Intellectual Property. The Company has not received written notice from any person claiming that such operation or any act, product, technology or service (including products, technology or services currently under development) of the Company infringes or misappropriates any Intellectual Property Right of any person or constitutes unfair competition or trade practices under the laws of any jurisdiction (nor does the Company have knowledge of any basis therefore). The Company does not operate interactive voice response units on behalf of clients in a service bureau environment. (vi) Confidentiality. The Company has taken reasonable steps to protect the Company's rights in confidential information and Trade -14- Secrets of the Company or provided by any other person to the Company. Without limiting the foregoing, the Company has and enforces a policy requiring each employee, consultant and contractor to execute proprietary information, confidentiality and assignment agreements and, to the Company's knowledge, all current and former employees, consultants and contractors of the Company have executed such an agreement. The Company has in place project management policies that require back-up procedures to be followed, including daily storage to a back-up server and at least weekly transmission to an off-site storage facility, that are reasonable in the circumstances. The Company does not permit employees, consultants or contractors to work from sites other than Company-approved sites and procedures are in place to assure that the Company maintains adequate possession and control of all Company Intellectual Property that may be being worked on by employees, consultants or contractors off-site. (vii) Transferability. To the knowledge of the Company, all Company Intellectual Property will be fully transferable, alienable or licensable by the Surviving Corporation and/or Fiserv or Fiserv Solutions without restriction and without payment of any kind to any third party. (viii) No Liens. Each item of Company Intellectual Property is free and clear of any liens except as reflected in the Company Financial Statements and for non-exclusive licenses granted to end-user customers in the ordinary course of business. (ix) No Transfer of Rights. The Company has not transferred ownership of, or granted any exclusive license of or right to use, or authorized the retention of any exclusive rights to use or joint ownership of, any material Technology or material Intellectual Property Right that is or was material Company Intellectual Property, to any other person. (x) Exclusive Rights. All Technology necessary to the conduct of the Company's business as presently conducted or currently planned to be conducted by the Company was written and created solely by (A) employees of the Company acting within the scope of their employment, (B) third parties who have validly and irrevocably assigned all of their rights, including Intellectual Property Rights therein, to the Company, or (C) third parties who have licensed the Company's use thereof. (xi) All Necessary Rights. The Company Intellectual Property constitutes all the Technology, Intellectual Property Rights and Company Registered Intellectual Property Rights used in and/or necessary to the conduct of the business of the Company as it currently is conducted on the date of this Agreement, and as it is currently planned or contemplated to -15- be conducted by the Company, including the design, development, manufacture, use, import and sale of Company Products. (xii) No Infringement. To the knowledge of the Company, operation of the business of the Company as it is currently conducted, or is presently proposed to be conducted, by the Company, including but not limited to the design, development, use, import, branding, advertising, promotion, marketing, manufacture and sale of Company Products does not infringe or misappropriate any Intellectual Property Right of any person, violate any right of any person (including any right to privacy or publicity), or constitute unfair competition or trade practices under the laws of any jurisdiction. (xiii) No Proceedings. No Company Intellectual Property or service of the Company is subject to any proceeding or outstanding decree, order, judgment or settlement agreement or stipulation that restricts in any manner the use, transfer or licensing thereof by the Company or may affect the validity, use or enforceability of such Company Intellectual Property. (xiv) IP Contracts. Other than inbound "shrink-wrap" and similar publicly available commercial binary code end-user licenses having an initial purchase price of $5,000 or less, Section 5.01(k)(xiv) of the Disclosure Schedule lists all contracts, licenses and agreements to which the Company is a party with respect to any Technology or Intellectual Property Rights (including licenses described in the opening clause of this sentence, the "IP Contracts"). The Company is not in material breach of nor has the Company failed to materially perform under any of the IP Contracts and, to the Company's knowledge: (A) no other party to any such IP Contract is in breach thereof or has failed to perform thereunder, and (B) there are no disputes regarding the scope of or performance under such IP Contracts, including with respect to any payments to be made or received by the Company thereunder. (xv) Obligation to Warrant. Other than inbound "shrink-wrap" and similar publicly available commercial binary code end-user licenses having an initial purchase price of $5,000 or less, Section 5.01(k)(xv) of the Disclosure Schedule lists all IP Contracts in which the Company has agreed to, or has assumed, any obligation or duty to warrant, indemnify, reimburse, hold harmless, guarantee or otherwise assume or incur any obligation or liability or provide a right of rescission with respect to the infringement or misappropriation by the Company or such other person of the Intellectual Property Rights of any person other than the Company. (xvi) No Grants, Assignments. To the Company's knowledge, neither this Agreement nor the transactions contemplated by this Agreement will result in (A) either Fiserv's, Fiserv Solutions', -16- Fiserv Sub's or the Surviving Corporation's granting to any person any right or license to any Technology or Intellectual Property Right owned by any of them; (B) either Fiserv's, Fiserv Solutions', Fiserv Sub's or the Surviving Corporation's being bound by, or subject to, any non-compete or other restriction on the operation or scope of their respective businesses; or (C) either Fiserv's, Fiserv Solutions', Fiserv Sub's or the Surviving Corporation's being obligated to pay any royalties or other amounts to any person in excess of those payable by Fiserv, Fiserv Solutions, Fiserv Sub or the Surviving Corporation, respectively. (l) List of Properties, Contracts and Other Data. Section 5.01(l) of the Disclosure Schedule contains a list setting forth with respect to the Company as of the date hereof the following: (i) all real properties owned in fee simple by the Company; (ii) all leases of real or personal property to which the Company is a party, either as lessee or lessor with a brief description of the property to which each such lease relates, except such leases of personal property as require payment during their remaining life aggregating less than $150,000; (iii) all collective bargaining agreements, all agreements or arrangements that contain any severance pay or post-employment liabilities or obligations, all bonus, deferred compensation, pension, profit sharing or retirement plans or any other employee benefit plans or arrangements, all employment or consulting agreements or contracts with an employee or individual consultant or salesperson or consulting or sales agreements or contracts, under which a firm or other organization provides services to the Company pursuant to which the Company is obligated to make payments in excess of $150,000 per year and all agreements or plans, including all stock option plans, stock appreciation rights plans or stock purchase plans, any of the benefits of which will be increased or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (iv) all contracts and commitments to which the Company is a party, or to which it or any of its assets or properties are subject and which are not specifically referred to in the preceding clauses (i), (ii) or (iii) above; provided that there need not be listed in the Disclosure Schedule (unless required pursuant to the preceding clauses (i), (ii) or (iii) above) any contract or commitment incurred in the ordinary course of business and consistent with past practice which requires payments to or by the Company during its remaining life aggregating less than $250,000; and -17- (v) the current annual total cash compensation of all employees of the Company (by position or by department) as of a recent date (a copy of which has been submitted to Fiserv but is not included in the Disclosure Schedule). True and complete copies of all documents and descriptions complete in all material respects of all oral agreements or commitments (if any) referred to in (i) through (iv) above have been made available to Fiserv or its counsel. The Company has not been notified in writing of any claim that any contract listed in the Disclosure Schedule for this subsection (l) is not valid and enforceable in accordance with its terms for the periods stated therein, or that there is under any such contract any existing default or event of default or event which with notice or lapse of time or both would constitute such a default, except for any such claim which would have, individually or when taken together with all such other claims referred to in this Section 5.01(l), an Adverse Effect. (m) Litigation. There are no actions, claims, charges, suits or proceedings with respect to the business of the Company pending against the Company of which the Company is aware at law or in equity, or before or by any federal, state, municipal, foreign or other governmental department, commission, board, bureau, agency or instrumentality (individually, a "Governmental Entity"), nor, to the knowledge of the Company, has the Company received any notice or threat of any such actions, claims, charges, suits or proceedings with respect to the business of the Company. To the knowledge of the Company, there is no investigation pending or threatened against the Company, its properties or any of its officers or directors by or before a Governmental Entity. To the knowledge of the Company, no Governmental Entity has at any time challenged or questioned the legal right of the Company to manufacture, offer or sell any of its products or services in the present manner or style thereof. (n) Labor Controversies. Except as would not reasonably be expected to have in the aggregate an Adverse Effect: (i) there are no controversies known to the Company between the Company and any employee or employees or any unresolved labor union grievances or unfair labor practice or labor arbitration proceedings pending or, to the knowledge of the Company, threatened, related to the Company and, to the knowledge of the Company, there are not and during the last two years prior to the date hereof there have not been any formal or informal organizing efforts by a labor organization and/or group of Company employees and the Company is not presently, nor has it been in the past, a party to, or bound by, any collective bargaining agreement or union contract with respect to employees and no collective bargaining agreement is being negotiated by the Company; (ii) the Company is in compliance in all material respects, and has not received notice of, nor, to the knowledge of the Company, has -18- there been threatened any claim that the Company has not complied in all material respects, with all laws relating to the employment of labor, including provisions thereof relating to wages, hours, collective bargaining, the payment of social security and similar Taxes, equal employment opportunity, employment discrimination and employment safety nor has the Company received notice of or, to the knowledge of the Company, has there been threatened any claim that it is liable for any arrears of wages or any Taxes or penalties for failure to comply with any of the foregoing; and the Company is not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any governmental authority with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the ordinary course of business and consistent with past practice) and there are no pending, threatened or reasonably anticipated claims or actions against the Company under any worker's compensation policy or long-term disability policy; and (iii) the Company does not now, nor has it ever had the obligation to, maintain, establish, sponsor, participate in or contribute to any international or foreign employee benefit plan. (o) Use of Real Property. The Company has not received any notice of any violation of any applicable zoning or building regulation, ordinance or other law, order, regulation or requirement relating to the Company (representations and warranties with respect to environmental matters being set forth in Section 5.01(p) hereof) or any notice of default under any lease, contract, commitment, license or permit, relating to the use and operation of the owned or leased real property listed in the Disclosure Schedule, in either case which would reasonably be expected to have, individually or in the aggregate, an Adverse Effect and, to the knowledge of the Company, there is no such violation or default which would have, individually or in the aggregate, an Adverse Effect. The Company has not received any written notice that any plant or other building that is owned or covered by a lease set forth in the Disclosure Schedule hereto does not substantially conform with all applicable ordinances, codes, regulations and requirements, and the Company has not received any written notice that any law or regulation presently in effect or condition precludes or restricts continuation of the present use of such properties by the Company. (p) Environmental Matters. Except for such matters as would not reasonably be expected to have, individually or in the aggregate, an Adverse Effect on the Company: (i) Hazardous Materials. The Company has not: (A) operated any underground storage tanks at any property that the Company has at any time owned, operated, occupied or leased; or (B) illegally released in violation of applicable law any material amount of any substance that has been designated by any Governmental Entity or by applicable federal, -19- state or local law to the be radioactive, toxic, hazardous or otherwise a danger to health or the environment, including PCBs, asbestos, petroleum, urea-formaldehyde and all substances listed as hazardous substances pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, or defined as a hazardous waste pursuant to the United States Resource Conservation and Recovery Act of 1976, as amended, and the regulations promulgated pursuant to said laws, (a "Hazardous Material"), but excluding office and janitorial supplies properly and safely maintained. No Hazardous Materials have been released in violation of any applicable law, as a result of the actions of the Company, or, to the Company's knowledge, as a result of any actions of any third party or otherwise, in, on or under any property, including the land and the improvements, ground water and surface water thereof, that the Company has at any time owned, operated, occupied or leased. (ii) Hazardous Materials Activities. The Company has not transported, stored, used, manufactured, disposed of, released or exposed its employees or others to Hazardous Materials in violation of any law in effect on or before the date hereof, nor has the Company disposed of, transported, sold or manufactured any product containing a Hazardous Material (any or all of the foregoing being collectively referred to as "Hazardous Materials Activities") in violation of any rule, regulation, treaty or statute promulgated by any Governmental Entity in effect prior to or as of the date hereof to prohibit, regulate or control Hazardous Materials or any Hazardous Material Activity. (iii) Permits. The Company currently holds all environmental approvals, permits, licenses, clearances and consents (the "Environmental Permits") necessary for the conduct of the Company's Hazardous Material Activities and other businesses of the Company as such activities and businesses are currently being conducted. (iv) Environmental Liabilities. No action, proceeding, revocation proceeding, amendment procedure, writ, injunction or claim is pending, or, to the Company's knowledge, threatened concerning any Environmental Permit, Hazardous Material or any Hazardous Materials Activity of the Company. The Company is not aware of any fact or circumstance that could involve the Company in any environmental litigation or impose upon the Company any environmental liability. (q) Additional Accounting Disclosure Matters. (i) Accounts Receivable. The accounts receivable reflected on the balance sheet of the Company as of December 31, 2002 and all accounts receivable arising between December 31, 2002 and the date hereof, arose from bona fide transactions in the ordinary course of business. Except for amounts also recorded as deferred revenue, these -20- transactions have been recorded in accordance with GAAP meeting the following criteria: persuasive evidence of an arrangement exists, delivery has occurred or services have been rendered, the sales price is fixed or determinable and no further deliveries or services are required to be provided in order to entitle the Company or its assignees to collect the accounts receivable reflected on the balance sheet. No such account has been assigned or pledged to any other person, firm or corporation. (ii) No Undisclosed Liabilities. The Company does not have any liabilities, indebtedness or obligations, whether accrued, absolute, contingent, matured or unmatured, that in the aggregate exceed $250,000, and which (A) has not been reflected or reserved against in the most recent Company Financial Statements in accordance with GAAP or (B) has arisen other than in the ordinary course of the Company's business since the date of the latest balance sheet included in the Company Financial Statements. (r) Compliance with Law; Restrictions on Business Activities. (i) No Defaults. The Company is not in default with respect to any order of any court, governmental authority or arbitration board or tribunal to which it is a party or, to the knowledge of the Company, to which the Company is subject and which applies to its business, and, to the knowledge of the Company, the Company has not been notified that is in violation of any laws, ordinances, governmental rules or regulations to which it is subject or that it has failed to obtain any licenses, permits, franchises or other governmental authorizations necessary to the ownership of its assets and properties or to the conduct of its business. (ii) Immigration Matters. The Company has on file a valid Form I-9 for each employee hired by the Company on or after November 7, 1986 and continuously employed after November 6, 1986 or the applicable date of hire. To the knowledge of the Company, all employees of the Company are (A) United States citizens, or lawful permanent residents of the United States, (B) aliens whose right to work in the United States is unrestricted, (C) aliens who have valid, unexpired work authorizations issued by the Attorney General of the United States (Immigration and Naturalization Service) or (D) aliens who have been continually employed by the Company since November 6, 1986 or the applicable date of hire. The Company has not been the subject of an immigration compliance or employment visit from, nor has the Company been assessed any fine or penalty by, or been the subject of any order or directive of, the United States Department of Labor or the Attorney General of the United States (Immigration and Naturalization Service). (iii) Restrictions on Business Activities. There is no agreement (noncompete or otherwise), commitment, judgment, injunction, order or -21- decree to which the Company is a party or otherwise binding upon the Company which has or reasonably would be expected to have the effect of prohibiting or impairing any business practice (including the licensing of any product) of the Company, any acquisition of property (tangible or intangible) by the Company or the conduct of business by the Company. Without limiting the foregoing, the Company has not entered into any agreement under which the Company is restricted from selling, licensing or otherwise distributing any of its products to any class of customers, in any geographic area, during any period of time or in any segment of the market. (iv) Employees. To the knowledge of the Company, no employee of the Company (A) is in violation of any term of any employment contract, patent disclosure agreement, non-competition agreement or any restrictive covenant to a former employer relating to the right of any such employee to be employed by the Company because of the nature of the business conducted or presently proposed to be conducted by the Company or to the use of trade secrets or proprietary information of others or (B) has given notice to the Company, nor is the Company otherwise aware that any key employee intends to terminate his or her employment with the Company. (v) Governmental Authorization. The Company possesses all material consents, licenses, permits, grants or other authorizations issued to the Company by a Governmental Entity (A) pursuant to which the Company currently operates or holds any interest in any of its properties or (B) which is required for the operation of its business or the holding of any such interest, other than such consents, licenses, permits, grants or authorizations the failure to obtain which would not, either individually or in the aggregate, have an Adverse Effect ("Company Authorizations"), which Company Authorizations are in full force and effect and constitute all Company Authorizations required to permit the Company to operate or conduct its business or hold any interest in its properties or assets and each such Company Authorization is listed on Section 5.01(r)(v) of the Disclosure Schedule. (s) Employee Benefits. (i) Employee Plans. Section 5.01(s)(i) of the Disclosure Schedule sets forth a list identifying each "employee pension benefit plan" as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), including any "multiemployer plan", as defined in Section 3(37) of ERISA, (the "Pension Plans") and a list identifying each "employee welfare benefit plan", as defined in Section 3(1) of ERISA, (the "Welfare Plans") that, in either case, are maintained, administered or contributed to by the Company, or which cover any employee or former employee of the Company. Collectively, -22- the Pension Plans and Welfare Plans are hereinafter referred to as the "Employee Plans". No Employee Plan is maintained, administered or contributed to by any entity other than the Company, and no Employee Plan is maintained under any trust arrangement which covers any employee benefit arrangement which is not an Employee Plan. (ii) Delivery of Copies of Plans, Documents, etc. The Company has delivered or has caused to be delivered or otherwise made available to Fiserv and Fiserv Solutions true and complete copies of (A) the Employee Plans (including related trust agreements, custodial agreements, insurance contracts, investment contracts and other funding arrangements, if any, and adoption agreements, if any), (B) any amendments to the Employee Plans, (C) any written interpretations of the Employee Plans, (D) material employee communications by the plan administrator of any Employee Plan (including, but not limited to, summary plan descriptions and summaries of material modifications, as defined under ERISA), (E) the two most recent annual reports (e.g., the complete Form 5500 series) prepared in connection with each Employee Plan (if such report was required), including all attachments (including the audited financial statements, if any) and (F) the two most recent actuarial valuation reports prepared in connection with each Employee Plan (if any such report was required). (iii) No Change in Benefits. Since December 31, 2001, there has been no amendment to, written interpretation or announcement (whether or not written) by the Company relating to, or change in employee participation or coverage under any Employee Plan that would increase materially the expense of maintaining such Employee Plan above the level of expense incurred in respect of such Employee Plan for the most recent plan year with respect to Employee Plans. The execution of this Agreement and the consummation of the transactions contemplated hereby do not and will not constitute an event under any Employee Plan, which either alone or upon the occurrence of a subsequent event will or may result in any payment, acceleration, vesting or increase in benefits to any employee, former employee or director of the Company. (iv) Compliance. Each Employee Plan has been maintained by the Company in material compliance with its terms and the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to, ERISA and the Internal Revenue Code of 1986, as amended (the "Code"), which are applicable to such Employee Plan. (v) Qualification, etc. Each Pension Plan is "qualified" within the meaning of Section 401(a) of the Code, and has been qualified during the period from the date of its adoption to the date of this Agreement, and each trust created thereunder is tax-exempt under Section 501(a) of the Code. The Company has delivered or caused to be delivered to Fiserv and -23- Fiserv Solutions the latest determination letter of the Internal Revenue Service relating to each Pension Plan. Such determination letters have not been revoked. Furthermore, there are no pending proceedings or, to the knowledge of the Company, threatened proceedings in which the "qualified" status of any Pension Plan is at issue and in which revocation of the determination letter has been threatened. Each such Pension Plan has not been amended or operated by the Company, since the receipt of the most recent determination letter, in a manner that would adversely affect the "qualified" status of the Plan. No distributions have been made from any of the Pension Plans that would violate in any respect the restrictions under Treasury Regulation Section 1.401(a)(4)-5(b), and none will be made prior to the Effective Time. (vi) No Claims. There are no pending or, to the knowledge of the Company, threatened (A) claims, charges, suits or other proceedings by any employees, former employees or plan participants or the beneficiaries, spouses or representatives of any of them against any Employee Plan, the assets held thereunder, the trustee of any such assets or the Company relating to any of the Employee Plans, other than ordinary and usual claims for benefits by participants or beneficiaries, or (B) suits, charges, investigations or other proceedings by any federal, state, local or other governmental agency or authority, of or against any Employee Plan, the assets held thereunder, the trustee of any such assets or the Company relating to any of the Employee Plans. If any of the actions described in this subsection are initiated prior to the Effective Time, the Company shall notify Fiserv of such action prior to the Effective Time. (vii) No Prohibited Transactions. The Company has not engaged (A) in any transaction or acted or failed to act in a manner that violates the fiduciary requirements of Section 404 of ERISA, or (B) in any "prohibited transaction" within the meaning of Section 406(a) or 406(b) of ERISA, or of Section 4975(c) of the Code, with respect to any Employee Plans, and will not so engage, act or fail to act prior to the Effective Time. Furthermore, to the knowledge of the Company, no other "party in interest", as defined in Section 3(14) of ERISA, or "disqualified person", as defined in Section 4975(e)(2) of the Code, has engaged in any such "prohibited transaction". (viii) No Liability. No liability has been incurred by the Company or by a trade or business, whether or not incorporated, which is deemed to be under common control or affiliated with the Company within the meaning of Section 4001 of ERISA or Section 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") for any Tax, penalty or other liability with respect to any Employee Plan and, to the knowledge of the Company, such Plans do not expect to incur any such liability prior to the Effective Time. -24- (ix) Required Contributions. The Company has made all required contributions under each Pension Plan on a timely basis or, if not yet due, adequate accruals therefore have been provided for in the financial statements. No Pension Plan has incurred any "accumulated funding deficiency" within the meaning of Section 302 of ERISA or Section 412 of the Code and no Pension Plan has applied for or received a waiver of the maximum funding standards imposed by Section 412 of the Code. (x) PBGC. Except for required premium payments, no liability to the Pension Benefit Guaranty Corporation (the "PBGC") has been incurred by the Company with respect to any Pension Plan that has not been satisfied in full, and no event has occurred and there exists no condition or set of circumstances that could result in the imposition of any such liability. The Company has complied, or will comply, with all requirements for premium payments, including any interest and penalty charges for late payment, due or to be due to PBGC on or before the Effective Time with respect to each Pension Plan for which any premiums are required. No proceedings to terminate, pursuant to Section 4042 of ERISA, have been instituted or, to the knowledge of the Company, are threatened by the PBGC with respect to any Pension Plan (or any Pension Plan maintained by an ERISA Affiliate). There has been no termination or partial termination, as defined in Section 411(d) of the Code and the regulations thereunder, of any Pension Plan. No reportable event, within the meaning of Section 4043 of ERISA, has occurred with respect to any Pension Plan. (xi) Benefit Obligations. No Pension Plan is covered by Title IV of ERISA. (xii) No Multiemployer Plan. Neither the Company nor any ERISA Affiliate has ever maintained, adopted or established, contributed or been required to contribute to, or otherwise participated or been required to participate in, nor will they become obligated to do so prior to the Effective Time, any "multiemployer plan" (as defined in Section 3(37) of ERISA). No amount is due from, or owed by, the Company or any ERISA Affiliate on account of a "multiemployer plan" (as defined in Section 3(37) of ERISA) or on account of any withdrawal therefrom. (xiii) No Post-Retirement Benefits. No Employee Plan provides benefits, including any severance or other post-employment benefit, salary continuation, termination, death, disability or health or medical benefits (whether or not insured), life insurance or similar benefit with respect to current or former employees (or their spouses or dependents) of the Company beyond their retirement or other termination of service other than (A) coverage mandated by applicable law, (B) death, disability or retirement benefits under any Pension Plan, (C) deferred compensation -25- benefits accrued as liabilities on the Company Financial Statements, (D) benefits, the full cost of which is borne by the current or former employee (or his or her beneficiary) or (E) as expressly contemplated by this Agreement. (xiv) COBRA. The Company has complied with, and satisfied, the requirements of Part 6 of Subtitle B of Title I of ERISA and Section 4980(B) of the Code, and all regulations thereunder ("COBRA") with respect to each Employee Plan that is subject to the requirements of COBRA. Each Employee Plan that is a group health plan within the meaning of Section 9832(a) of the Code, as maintained by the Company, has complied with and satisfied the applicable requirements of Sections 9801 and 9802 of the Code. (t) Insurance. The Disclosure Schedule summarizes the amount and kinds of insurance as to which the Company has insurance policies, contracts or fidelity bonds relating to the business or operations of the Company. All such insurance policies, contracts and bonds are in full force and effect. All such insurance policies, contracts and bonds covering the assets, business, equipment, properties, operations, employees, officers and directors of the Company contain provisions which, to the knowledge of the Company, are reasonable and customary in the Company's industry, and there is no claim by the Company pending under any of such policies or bonds as to which coverage has been questioned, denied or disputed by the underwriters of such policies or bonds. All premiums due and payable under all such policies, contracts and bonds have been paid and the Company is otherwise in compliance in all material respects with the terms of such policies, contracts and bonds (or other policies, contracts and bonds providing substantially similar insurance coverage). No notice of cancellation or termination of any such insurance policies, contracts or bonds has been given to the Company by the carrier of any such policy, contract or policy. (u) Bank Accounts. Section 5.01(u) of the Disclosure Schedule lists all bank, money market, savings and similar accounts and safe deposit boxes of the Company, specifying the account numbers and the authorized signatories of persons having access to them. (v) Minute Books. The minute books and stock books or share ledgers, as the case may be, of the Company made available to Fiserv and Fiserv Solutions are the only minute books and stock books or share ledgers, as the case may be, of the Company and contain a reasonably accurate summary of all meetings of directors (including committees thereof) and shareholders or actions by written consent and of all transactions in the capital stock of the Company since the time of incorporation of the Company. -26- (w) Taxes. (i) Compliance Generally. The Company (A) has duly and timely filed or caused to be filed with the appropriate authorities all Tax Returns of, related to or including the Company, including its income, assets, payroll or operations, and properly included the items related thereto in such Tax Returns, which Tax Returns are true, correct and complete, and (B) has duly and timely paid or caused to be paid to the appropriate authorities all Taxes that are due and payable on or before the date hereof, and has properly accrued on its books and records in accordance with GAAP any Tax which not then due. The Company has complied with all applicable laws, rules and regulations relating to the reporting, payment, collection and withholding of Taxes and has duly and timely collected or withheld and paid over to the appropriate authorities all amounts required to be so collected or withheld and paid over under all applicable laws. All Taxable years or periods for the assessment of Taxes are closed either by agreement with the applicable Taxing authority or by operation of the normal statute of limitations or, if not yet closed, will close by operation of the normal statute of limitations for such Tax Returns (without extension). Section 5.01(w)(i) of the Disclosure Schedule sets forth a list of each jurisdiction where the Company files a Tax Return and the type of Tax Returns filed during the past five years. The Company has made available for review by Fiserv and Fiserv Solutions true, correct and complete copies of all Tax Returns filed by or with respect to the Company during the past five years and of all correspondence to or from a Taxing authority relating thereto and with respect to any Proceeding (as hereinafter defined). (ii) No Adjustments. No Taxing authority has asserted any adjustment that would result in an additional Tax of the Company which has not been fully paid or which adjustment, if asserted, would apply to any other period. No such adjustment is pending or, to the knowledge of the Company, being considered. There is no pending audit, examination, investigation, dispute, proceeding or claim (collectively, a "Proceeding") relating to any Tax of the Company, and, to the knowledge of the Company, no Taxing authority is contemplating such a Proceeding. (iii) No Other Arrangements. The Company is not a party to any agreement, contract or arrangement for services that would result, individually or in the aggregate, in the payment of any amount that would not be deductible by reason of Section 162, 280G or 404 of the Code. The Company is not a "consenting corporation" within the meaning of Section 341(f) of the Code. The Company does not have any "tax-exempt bond financed property" or "tax-exempt use property" within the meaning of Section 168(g) or (h), respectively, of the Code. The Company has not entered into any sale-leaseback or leveraged lease transaction. None of the assets of the Company is required to be treated as being owned by any -27- other person pursuant to the "safe harbor" leasing provisions of Section 168(f)(8) of the Internal Revenue Code of 1954, as in effect prior to the repeal of said leasing provisions. The Company has never made or been required to make an election under Section 338 of the Code. The Company has never been included in a consolidated, combined or unitary Tax Return. The Company is not and has never been a party to any Tax sharing or Tax allocation agreement, arrangement or understanding. No Tax authority has ever asserted that the Company should file a Tax Return in a jurisdiction where it does not file. The Company does not have outstanding any closing agreement, ruling request, request for consent to change a method of accounting, subpoena or request for information with or by any Taxing authority in connection with any Tax matter. There is no outstanding power of attorney authorizing anyone to act on behalf of the Company in connection with any Tax, Tax Return or Proceeding relating to any Tax. The Company is not required to include any adjustment under Section 481 of the Code (or any similar provision of applicable law) in income for any period (or portion of a period) ending after the Closing Date. During the last two years the Company has not engaged in any exchange with a related party (within the meaning of Section 1031(f) of the Code) under which gain realized was not recognized by reason of Section 1031 of the Code. (iv) Taxes Defined. For purposes of this Agreement, "Taxes" means all federal, state, local and foreign taxes, charges, fees, levies, deficiencies or other assessments of whatever kind or nature (including all net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, built-in gains, license, withholding, payroll, employment, unemployment, excise, estimated, severance, stamp, occupation, real property, personal property, intangible property, occupancy, recording, minimum, environmental, windfall profits or other taxes, customs, duties, fees, assessments or charges of any kind whatsoever), including any liability therefor as a transferee (including under Section 6901 of the Code), as a result of Treasury Regulation Section 1.1502-6, or in each case, any similar provision under applicable law, or as a result of any Tax sharing or similar agreement, together with any interest, penalties, additions to tax or additional amounts imposed by any Taxing authority (domestic or foreign). (v) Tax Return Defined. As used herein, "Tax Return" includes any return, declaration, report, claim for refund or credit, information return or statement, and any amendment to any of the foregoing, including any consolidated, combined or unitary return or other document (including any related or supporting information or schedule), filed or required to be filed with any federal, state, local or foreign governmental entity or agency in connection with the determination, assessment, collection or payment of Taxes or the administration of any -28- laws, regulations or administrative requirements relating to Taxes or ERISA. (x) Related Party Transactions. Since January 1, 2000, no event has occurred that would be required to be reported by the Company pursuant to Item 404 of Regulation S-K promulgated by the SEC. There are no assets of any Related Party that are used in or necessary to the conduct of the business of the Company. "Related Party" means, with respect to any party, any officer, director or beneficial owner of more than 5% of the outstanding voting securities of such party (or any entity of which such person is an officer, director or beneficial owner of more than 5% of such entity's outstanding voting securities). (y) Brokers. All negotiations relative to this Agreement and the transactions contemplated hereby have been carried out by the Company directly with Fiserv, Fiserv Solutions and Fiserv Sub, without the intervention of any other person on behalf of the Company in such manner as to give rise to any valid claim by any other person against the Company or Fiserv, Fiserv Solutions or Fiserv Sub for a finder's fee, brokerage commission or similar payment. (z) Voting Requirements. The Company Shareholder Approval is the only vote of the holders of the Company's capital stock required by law to approve and adopt this Agreement and the transactions contemplated hereby. (aa) Representations Complete. Except for the representations and warranties contained in this Section 5.01, neither the Company nor any Subsidiary or other person makes any other express or implied representation or warranty on behalf of the Company or any or its affiliates to Fiserv, Fiserv Solutions or Fiserv Sub. SECTION 5.02 Representations and Warranties of Fiserv, Fiserv Solutions and Fiserv Sub. Fiserv, Fiserv Solutions and Fiserv Sub each represents and warrants to the Company as follows: (a) Organization and Qualification, etc. Fiserv, Fiserv Solutions and Fiserv Sub are corporations duly organized, validly existing and in good standing under the laws of the State of Wisconsin, the State of Wisconsin and the State of Florida, respectively, and each has corporate power and authority to own its properties and assets and to carry on its business as it is now being conducted. Each of Fiserv, Fiserv Solutions and Fiserv Sub is duly qualified to do business and is in good standing in each jurisdiction where the failure to be so qualified would have a Material Adverse Effect. (b) Authority Relative to Agreement. Each of Fiserv, Fiserv Solutions and Fiserv Sub has the corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated on its part hereby. The execution and delivery by Fiserv, Fiserv Solutions and Fiserv Sub of this Agreement and the consummation by each of them of the transactions -29- contemplated on its part hereby have been duly authorized by their respective Board of Directors and, in the case of Fiserv Sub, its sole shareholder. No other corporate proceedings on the part of Fiserv, Fiserv Solutions or Fiserv Sub are necessary to authorize the execution and delivery of this Agreement by Fiserv, Fiserv Solutions or Fiserv Sub or the consummation by Fiserv, Fiserv Solutions or Fiserv Sub of the transactions contemplated hereby. This Agreement has been duly executed and delivered by Fiserv, Fiserv Solutions and Fiserv Sub, and, assuming the due authorization, execution and delivery at the Effective Time of this Agreement by the Company, is their valid and binding agreement, enforceable against Fiserv, Fiserv Solutions and Fiserv Sub, as applicable, in accordance with its terms, except as such enforcement is subject to the effect of (i) any applicable bankruptcy, insolvency, reorganization or similar laws relating to or affecting creditors' rights generally and (ii) general principles of equity, including concepts of materiality, reasonableness, good faith and fair dealing and other similar doctrines affecting the enforceability of agreements generally (regardless of whether considered in a proceeding in equity or at law). (c) Non-Contravention. The execution and delivery of this Agreement by Fiserv, Fiserv Solutions and Fiserv Sub do not and the consummation by Fiserv, Fiserv Solutions and Fiserv Sub of the transactions contemplated hereby will not (i) violate any provision of the Articles or Certificate of Incorporation or By-laws of Fiserv, Fiserv Solutions or Fiserv Sub, as the case may be, or (ii) violate, or result, with the giving of notice or the lapse of time or both, in a violation of, any provision of, or result in the acceleration of or entitle any party to accelerate (whether after the giving of notice or lapse of time or both) any obligation under, or result in the creation or imposition of any material lien, charge, pledge, security interest or other encumbrance upon any of the property of Fiserv, Fiserv Solutions or Fiserv Sub pursuant to any provision of, any mortgage or lien or material lease, agreement, license or instrument or any order, arbitration award, judgment or decree to which Fiserv, Fiserv Solutions or Fiserv Sub is a party or by which any of their respective assets is bound and do not and will not violate or conflict with any other material restriction of any kind or character to which Fiserv, Fiserv Solutions or Fiserv Sub is subject or by which any of its assets may be bound, and the same does not and will not constitute an event permitting termination of any such mortgage or lien or material lease, agreement, license or instrument to which Fiserv, Fiserv Solutions or Fiserv Sub is a party or (iii) violate in any material respect any law, ordinance or regulation to which Fiserv, Fiserv Solutions or Fiserv Sub is subject, except, in each case or cases, for any such violation, acceleration, creation, imposition, conflict or termination which would not prevent the consummation of the transactions contemplated hereby by Fiserv, Fiserv Solutions or Fiserv Sub. (d) Government Approvals. Except for (i) the filing of the Articles of Merger with the Secretary of State of the State of Florida and (ii) applicable requirements of the Exchange Act, state takeover or securities laws and the rules of Nasdaq, no consent, authorization, order or approval of, or filing or registration with, any governmental commission, board or other regulatory body is required -30- for or in connection with the execution and delivery of this Agreement by Fiserv, Fiserv Solutions and Fiserv Sub and the consummation by Fiserv, Fiserv Solutions and Fiserv Sub of the transactions contemplated hereby, except where the failure to obtain such consents, authorizations or approvals or to make such filings or registrations would not prevent the consummation of the transactions contemplated hereby. (e) Financial Ability. Fiserv has, and prior to the Closing will provide to Fiserv Sub, sufficient cash available to enable it to consummate the transactions contemplated by this Agreement. (f) Capitalization of Fiserv Sub. The authorized capital stock of Fiserv Sub consists of 1,000 shares of common stock, $.01 par value, of which 100 shares are validly issued and outstanding, fully paid and nonassessable and all of which are owned by Fiserv Solutions, which is, and at the Effective Time will be, a wholly-owned subsidiary of Fiserv. Fiserv Sub has not conducted any business prior to the date hereof and has no, and prior to the Effective Time will have no, assets, liabilities or obligations of any nature other than those incident to its formation and pursuant to or in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement. (g) Litigation and Liabilities. There are no civil, criminal or administrative actions, suits, claims, hearings, investigations or proceedings pending or, to the knowledge of Fiserv, threatened against Fiserv, Fiserv Solutions, Fiserv Sub, or any of their respective subsidiaries, which would prevent or materially impair the ability of Fiserv, Fiserv Solutions or Fiserv Sub to consummate the Merger or any of the other transactions contemplated by this Agreement. (h) Compliance with Laws. The business of Fiserv, Fiserv Solutions, Fiserv Sub and their respective subsidiaries, taken as a whole, is not being conducted in violation of any laws, except for violations that would not prevent or materially impair the ability of Fiserv, Fiserv Solutions or Fiserv Sub to consummate the transactions contemplated by this Agreement. As of the date hereof, no investigation or review by any Governmental Entity with respect to Fiserv, Fiserv Solutions, Fiserv Sub or any of their respective subsidiaries is pending or, to the knowledge of Fiserv, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for those the outcome of which would not prevent or materially impair the ability of Fiserv, Fiserv Solutions, Fiserv Sub or their respective subsidiaries to consummate the transactions contemplated by this Agreement. Fiserv, Fiserv Solutions, Fiserv Sub and their respective subsidiaries each has all permits, licenses, franchises, variances, exemptions, orders and other governmental authorizations, consents and approvals from Governmental Entities necessary to conduct its business as presently conducted, except for those the absence of which would not prevent or materially impair the ability to consummate the Merger and the other transactions contemplated by this Agreement. -31- (i) Brokers. All negotiations relative to this Agreement and the transactions contemplated hereby have been carried out by Fiserv, Fiserv Solutions and Fiserv Sub directly with the Company, without the intervention of any person on behalf of Fiserv, Fiserv Solutions or Fiserv Sub in such manner as to give rise to any valid claim by any person against the Company or Fiserv, Fiserv Solutions or Fiserv Sub for a finder's fee, brokerage commission or similar payment. (j) No Other Representations or Warranties. Except for the representations and warranties contained in this Section 5.02, none of Fiserv, Fiserv Solutions, Fiserv Sub or any other person makes any other express or implied representation or warranty on behalf of Fiserv, Fiserv Solutions or Fiserv Sub to the Company. ARTICLE VI ADDITIONAL COVENANTS AND AGREEMENTS SECTION 6.01 Conduct of Business. During the period from the date hereof to the Effective Time, except as otherwise contemplated by this Agreement, the Company shall use commercially reasonable efforts to conduct its operations according to its ordinary and usual course of business and shall use commercially reasonable efforts to preserve substantially intact its business organization, keep available the services of its officers and employees and maintain its present relationships with licensors, suppliers, distributors, customers and others having significant business relationships with it. The Company shall cause representatives of the Company to confer with representatives of Fiserv, Fiserv Solutions and Fiserv Sub to keep them reasonably informed with respect to the general status of the on-going operations of the business of the Company. For purposes of this Article VI, the term "Company" shall be deemed to include the Subsidiaries where relevant or appropriate. SECTION 6.02 Access to Information by Fiserv, Fiserv Solutions and Fiserv Sub. Fiserv, Fiserv Solutions and Fiserv Sub shall, prior to the Effective Time, be provided reasonable access to the business and properties of the Company and information concerning its financial and legal condition that Fiserv, Fiserv Solutions and Fiserv Sub deem reasonably necessary or advisable in connection with the consummation of the transactions contemplated hereby, provided that such access shall be during normal business hours and shall not interfere with normal operations of the Company. The Company agrees to permit Fiserv, Fiserv Solutions and Fiserv Sub and their authorized representatives, including Deloitte & Touche LLP, to have or cause them to be permitted to have, after the date hereof and until the Effective Time, reasonable access to the premises, books and records of the Company during normal business hours, and the officers of the Company will furnish Fiserv, Fiserv Solutions and Fiserv Sub with such financial and operating data and other information with respect to the business and properties of the Company as Fiserv, Fiserv Solutions and Fiserv Sub shall from time to time reasonably request. -32- SECTION 6.03 Consents and Authorizations. As soon as practicable, each of the parties hereto will commence to take all commercially reasonable action to obtain all authorizations, consents, orders and approvals of all third parties and of all federal, state and local regulatory bodies and officials which may be or become necessary for its execution and delivery of, and the performance of its obligations pursuant to, this Agreement and will cooperate fully with the other parties in promptly seeking to obtain all such authorizations, consents, orders and approvals. SECTION 6.04 Non-Assignable Licenses, Leases and Contracts. The Company shall use its commercially reasonable efforts to obtain and deliver to Fiserv, Fiserv Solutions or Fiserv Sub, as the case may be, at or prior to the Effective Time such consents or waivers as are required in order that any material contract listed or required to be listed on the Disclosure Schedule which would be breached or violated, or would give any other party the right to cancel the same, as a result of the occurrence of the Merger hereunder, shall not be so breached or violated or result in such right of cancellation. The Company shall use its commercially reasonable efforts to obtain and deliver to Fiserv, Fiserv Solutions or Fiserv Sub, as the case may be, at or prior to the Effective Time such consents or waivers as shall be reasonably requested by Fiserv, Fiserv Solutions or Fiserv Sub, as the case may be, for any non-material contracts required or not required to be listed on the Disclosure Schedule which, as a result of the occurrence of the Merger hereunder, would be breached or violated or would give any other party the right to cancel the same, in order that such contracts shall not be so breached or violated or result in such right of cancellation. SECTION 6.05 Employee Matters. The employees of the Company shall continue to be employees of the Surviving Corporation following the Merger, and except as otherwise set forth in the Disclosure Schedule, such employment to be employment at will. Thereafter, for so long as they are employed by the Surviving Corporation, they shall be paid, depending on their duties and responsibilities, in accordance with Fiserv's compensation policies with respect to its employees generally. In addition, the Company's employee benefit plans shall be terminated as soon as practicable after the Effective Time and the employees of the Company shall be entitled to participate in the benefit plans that Fiserv maintains for its employees, generally on the same terms and conditions as other employees of Fiserv (except with respect to Fiserv's sabbatical policy and quarter century retirement stock plan). For this purpose, each "year of service" with the Company shall be treated as a "year of service" with Fiserv (except for Fiserv's sabbatical policy and quarter century retirement stock plan). SECTION 6.06 Taxes. The Company will duly and timely file all Tax Returns required to be filed on or prior to the Effective Time, duly and timely pay all Taxes required to be paid on or prior to the Effective Time and accrue on the Company's books and records in accordance with GAAP any Tax of or relating to the Company, its income, assets, payroll or operations which is not then due. Such Tax Returns shall be true, correct and complete, shall be prepared on a basis consistent with prior Tax Returns of the Company and shall not make, amend or terminate any election or change any accounting method, practice or procedure without Fiserv's prior written consent. The Company shall give Fiserv a copy of each such Tax Return for its review and comments -33- prior to filing. The Company shall duly and timely withhold or collect and pay over to the proper governmental authority any Taxes required to be withheld or collected by the Company on or before the Effective Time under all applicable laws. SECTION 6.07 Solicitation of Alternative Transaction. (a) The Company will not, and will cause its Subsidiaries and its and their officers, directors, employees, financial advisors, counsel, representatives and agents (collectively, "Representatives") not to, (i) directly or indirectly, solicit, initiate, encourage or otherwise facilitate the making of an Acquisition Proposal (as hereinafter defined); (ii) participate or engage in or encourage in any way negotiations or discussions concerning, or provide any non-public information to, any person or entity relating to an Acquisition Proposal, or which may reasonably be expected to lead to an Acquisition Proposal; or (iii) agree to or endorse any Acquisition Proposal; provided, however, that nothing contained in this Section 6.07 or in any other provision of this Agreement will prohibit the Company or the Company's Board of Directors from taking and disclosing to the Company's shareholders a position contemplated by Rule 14e-2 promulgated under the Exchange Act or from making any legally required disclosure to the Company's shareholders. (b) Notwithstanding the provisions of Section 6.07(a), this Agreement will not prohibit the Company's Board of Directors from, prior to obtaining the Company shareholder approvals set forth in Section 7.01(b), furnishing nonpublic information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited Superior Proposal (as hereinafter defined), if, and only to the extent that: (i) the failure of the Company's Board of Directors to take action with respect to such Superior Proposal would be a breach of the Board's fiduciary duties imposed by applicable law; (ii) prior to first furnishing nonpublic information to, or first entering into substantive discussions and negotiations with, such person or entity after the date hereof, the Company (A) provides written notice of at least three business days to Fiserv to the effect that it intends to furnish information to, or enter into discussions or negotiations with, such person or entity, and naming and identifying the person or entity making the Acquisition Proposal, and (B) receives from such person or entity an executed confidentiality agreement; and (iii) the Company concurrently provides Fiserv with all non-public information to be provided to such person or entity that Fiserv has not previously received from the Company, and the Company keeps Fiserv reasonably informed of the status and the material terms and conditions and all other material information with respect to any such discussions or negotiations. "Acquisition Proposal" shall mean any offer or proposal for (i) a transaction or series of related transactions pursuant to which (A) any person or entity who does not currently own 15% or more of the outstanding shares of Company Common Stock (a "Non-Affiliated Person") acquires 15% or more of the outstanding shares of Company Common Stock, including without limitation a tender offer or an exchange offer which, if consummated, would result in any -34- Non-Affiliated Person acquiring 15% or more of the outstanding shares of Company Common Stock, or (B) any person or entity who currently owns more than 15% of the outstanding shares of Company Common Stock (a "Current Affiliated Person") acquires 50% or more of the outstanding shares of Company Common Stock, including without limitation a tender offer or an exchange offer which, if consummated, would result in any Current Affiliated Person acquiring 50% or more of the outstanding shares of Company Common Stock; provided, however, that no transfer of Company Common Stock permitted by the terms of the Agreement to Facilitate Merger (as hereinafter defined) shall be deemed to constitute an Acquisition Proposal or to breach or violate the provisions of this Agreement, (ii) a merger or other business combination involving the Company pursuant to which any Non-Affiliated Person acquires securities representing 15% or more, or a Current Affiliated Person acquires securities representing 50% or more, of the aggregate voting power of all outstanding securities of the company surviving the merger or business combination, or (iii) any other transaction pursuant to which any person or entity acquires control of assets (including for this purpose the outstanding equity securities of any Company Subsidiary) of the Company having a fair market value equal to 15% or more of the fair value of all of the assets of the Company immediately prior to such a transaction. "Superior Proposal" shall mean a bona fide Acquisition Proposal that the Board of Directors of the Company has reasonably and in good faith determined, after consultation with its financial advisors and outside counsel, to be more favorable to the Company's shareholders than the Merger. (c) The Company agrees that it will notify Fiserv within three (3) business days if it or any of its Representatives receives an Acquisition Proposal or any inquiry reasonably likely to lead to a Acquisition Proposal or if any discussions or negotiations are sought to be initiated or continued with the Company or its Representatives concerning an Acquisition Proposal, and such notification will contain the name of the person or entity involved and the material terms and conditions of such an Acquisition Proposal. (d) Upon execution of this Agreement, the Company will immediately terminate all discussions with any person or entity (other than Fiserv and its subsidiaries) concerning any Acquisition Proposal, and will request that such person or entities promptly return any confidential information furnished by the Company in connection with any Acquisition Proposal. The Company will not waive any provision of any confidentiality, standstill or similar agreement entered into with any person or entity regarding any Acquisition Proposal, and prior to the Closing will enforce all such agreements in accordance with their terms. (e) Nothing contained in this Section 6.07 shall (i) permit the Company to terminate this Agreement (except as specifically provided in Article VIII hereof), or (ii) permit the Company to enter into any agreement providing for an Acquisition Proposal (other than the confidentiality agreement as -35- provided, and in the circumstances and under the conditions set forth, above) for as long as this Agreement remains in effect. SECTION 6.08 Proxy Material. (a) As promptly as practicable after the execution of this Agreement, the Company shall prepare and file with the SEC a proxy statement relating to the meeting of the Company's shareholders to be held in connection with the Merger (together with any amendments thereof or supplements thereto, in each case in the form or forms mailed to the Company's shareholders, the "Proxy Statement"). Each of Fiserv, Fiserv Solutions, Fiserv Sub and the Company shall furnish all information concerning it and the holders of its capital stock as the other may reasonably request in connection with such actions and the preparation of the Proxy Statement. As promptly as practicable, the Company shall mail the Proxy Statement to its shareholders. No amendment or supplement to the Proxy Statement will be made by the Company without the approval of Fiserv (which approval shall not be unreasonably withheld, delayed or conditioned). The Company will advise Fiserv, promptly after it receives notice thereof, of any request by the SEC for amendment of the Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information. (b) The information supplied by Fiserv, Fiserv Solutions and Fiserv Sub for inclusion in the Proxy Statement shall not, at (i) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the shareholders of the Company, (ii) the time of the Company Special Meeting, and (iii) the Effective Time, contain (as to Fiserv, Fiserv Solutions, Fiserv Sub and their respective subsidiaries or their respective officers and directors) any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading. If at any time prior to the Effective Time any event or circumstance relating to Fiserv, Fiserv Solutions, Fiserv Sub or their respective subsidiaries, or their respective officers or directors, should be discovered by Fiserv, Fiserv Solutions or Fiserv Sub which should be set forth in an amendment or a supplement to the Proxy Statement, Fiserv shall promptly inform the Company. (c) The information supplied by the Company for inclusion in the Proxy Statement shall not, at (i) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the shareholders of the Company, (ii) the time of the Company Special Meeting, and (iii) the Effective Time, contain (as to the Company and each of its Subsidiaries) any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading. If at any time prior to the Effective Time any event or circumstance relating to the Company or any of its Subsidiaries, or their respective officers or directors, should be discovered by the Company which should be set forth in an amendment or a supplement to the Proxy Statement, the Company shall promptly inform Fiserv. All documents that the Company is responsible for filing with the SEC in -36- connection with the transactions contemplated herein will comply as to form and substance in all material respects with the applicable requirements of the Exchange Act. SECTION 6.09 Shareholders' Meetings. (a) The Company shall, in accordance with applicable law and its Amended and Restated Articles of Incorporation and Amended and Restated Bylaws, duly call, give notice of, convene and hold a special meeting (which, as may be duly adjourned, the "Company Special Meeting") of its shareholders for the purpose of approving and adopting the plan of merger (as such term is used in Section 607.1101 et seq. of the Florida Law) set forth in this Agreement and approving the Merger by the Company Shareholder Approval. The Company agrees to use its commercially reasonable efforts to cause the Company Special Meeting to occur as soon as practicable after the date hereof, but not earlier than 20 business days after the date the Proxy Statement is first mailed to its shareholders. The Company shall use reasonable best efforts to obtain the adoption and approval by the Company's shareholders of this Agreement and the approval by the Company's shareholders of the Merger, unless otherwise required under applicable law in order for the Board of Directors to comply with its applicable fiduciary duties to its shareholders imposed by law. The Board of Directors of the Company will, subject to Section 6.09(b), recommend the adoption and approval by the Company's shareholders of this Agreement and the approval by the Company's shareholders of the Merger. (b) The Board of Directors of the Company may not withdraw, or modify in a manner adverse to Fiserv, Fiserv Solutions or Fiserv Sub, its recommendation to its shareholders referred to in subsection (a) above unless (i) the Company has complied with the terms of Section 6.07 in all material respects, including, without limitation, the requirement in Section 6.07 that it notify Fiserv after its receipt of any Acquisition Proposal, and (ii) such withdrawal or modification is required under applicable law in order for the Board of Directors of the Company to comply with its fiduciary duties. SECTION 6.10 State Takeover Statutes. The Company and its Board of Directors shall (a) take all commercially reasonable actions necessary to ensure that neither Section 607.0901 nor Section 607.0902 of the Florida Law is or becomes applicable to this Agreement or the Agreement to Facilitate Merger, the Merger or any of the other transactions contemplated hereby or thereby and (b) if either of such statutes becomes applicable to this Agreement or the Agreement to Facilitate Merger, the Merger or any other transaction contemplated hereby or thereby, take all commercially reasonable action necessary to ensure that the Merger, and the other transactions contemplated hereby and thereby, may be consummated as promptly as practicable on the terms contemplated hereby and otherwise to minimize the effect of such statute or regulation on the Merger and the other transactions contemplated hereby and thereby. -37- SECTION 6.11 Shareholder Litigation. Subject to any confidentiality obligations and the preservation of any attorney-client privilege, the parties shall cooperate and consult with one another, to the fullest extent reasonably possible, in connection with any shareholder litigation against any of them or any of their respective directors or officers with respect to the transactions contemplated by this Agreement. In furtherance of and without in any way limiting the foregoing, each of the parties shall use its respective commercially reasonable efforts to prevail in such litigation so as to permit the consummation of the transactions contemplated by this Agreement in the manner contemplated by this Agreement. Notwithstanding the foregoing, the Company shall not compromise or settle any litigation commenced against it or its directors or officers relating to this Agreement or the transactions contemplated hereby (including the Merger) without Fiserv's prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned). SECTION 6.12 Confidentiality. Fiserv, Fiserv Solutions, Fiserv Sub and their respective subsidiaries on the one hand and the Company on the other hand will comply with, and will cause their respective representatives to comply with, in all respects, all of their respective obligations under the Confidentiality Agreement dated as of February 11, 2002 (the "Confidentiality Agreement") between Fiserv and the Company, and in no event, will the negotiation, entering into or termination of this Agreement be deemed to waive or otherwise adversely affect the rights and obligations of the parties under the Confidentiality Agreement, which rights and obligations will continue in full force and effect in accordance with their terms. SECTION 6.13 Further Actions. Subject to the terms and conditions herein provided and without being required to waive any conditions herein (whether absolute, discretionary, or otherwise), each of the parties hereto agrees to use all commercially reasonable efforts to take, or cause to be taken, all action, and to do, or cause to be done, all things necessary, proper, or advisable to consummate and make effective the transactions contemplated by this Agreement. In case at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, the proper officers and directors of each party to this Agreement will take all such necessary action. SECTION 6.14 Notification of Certain Matters. The Company will give prompt written notice to Fiserv, and Fiserv will give prompt written notice to the Company, of (a) the occurrence, or nonoccurrence, of any event the occurrence, or nonoccurrence, of which would be likely to cause any representation or warranty contained herein to be untrue or inaccurate in any material respect at or prior to the Effective Time and (b) any material failure of the Company or Fiserv, Fiserv Solutions or Fiserv Sub, as the case may be, to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder; provided, however, that the delivery of any notice pursuant to this Section 6.14 will not limit or otherwise affect the remedies available hereunder to the party receiving such notice. SECTION 6.15 Voting of Shares. To induce Fiserv to execute this Agreement, the Principal Shareholders have executed and delivered as of the date hereof an -38- Agreement to Facilitate Merger substantially in the form attached as Exhibit B hereto (the "Agreement to Facilitate Merger"), pursuant to which each such Principal Shareholder has agreed to vote its shares of Company Common Stock in favor of the Merger at the Company Special Meeting. SECTION 6.16 Indemnification. (a) The Articles of Incorporation and the Bylaws of the Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liability set forth in the Company's Amended and Restated Articles of Incorporation and Amended and Restated Bylaws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of individuals who on or prior to the Effective Time were directors, officers, employees or agents of the Company or its Subsidiaries. This Section 6.16(a) shall not limit or otherwise adversely affect any rights any Indemnified Person may have under any agreement with the Company or under the Company's Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws. (b) After the Effective Time, the Surviving Corporation shall indemnify, defend and hold harmless (and shall also advance expenses as incurred to the fullest extent permitted under applicable law to) each person who is or has been prior to the date hereof or who becomes prior to the Effective Time an officer or director of the Company or any of its Subsidiaries (the "Indemnified Persons") against (a) all losses, claims, damages, costs, expenses (including, without limitation, reasonable counsel fees and expenses), settlement payments or liabilities arising out of or in connection with any claim, demand, action, suit, proceeding or investigation based in whole or in part on or arising in whole or in part out of the fact that each person is or was an officer or director of the Company or any of its subsidiaries whether or not pertaining to any matter existing or occurring at or prior to the Effective Time and whether or not asserted or claimed prior to or at or after the Effective Time ("Indemnified Liabilities") and (b) all Indemnified Liabilities based in whole or in part on or arising in whole or in part out of or pertaining to this Agreement or the transactions contemplated hereby, in each case to the fullest extent required or permitted under applicable law or under the Surviving Corporation's Articles of Incorporation or Bylaws, as amended and/or restated, but not in excess of that permitted by applicable law. The parties thereto intend, to the extent not prohibited by applicable law, that the indemnification provided for in this Section 6.16(b) shall apply without limitation to negligent acts or omissions by an Indemnified Person. Fiserv and Fiserv Solutions, jointly and severally, hereby guarantee the payment and performance of the Surviving Corporation's obligations in this Section 6.16 and Section 6.17. Each Indemnified Person is intended to be a third-party beneficiary of this Section 6.16 and Section 6.17 and may specifically enforce their terms. This Section 6.16 shall not limit or otherwise adversely affect any rights any Indemnified Person may have under any agreement with the Company or under -39- the Company's Amended and Restated Articles of Incorporation and Amended and Restated Bylaws. (c) The obligations of the Company and the Surviving Corporation contained in this Section 6.16 and Section 6.17 shall be binding on the successors and assigns of the Surviving Corporation. If Fiserv, Fiserv Solutions, the Surviving Corporation or any of their successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then and in each such case, proper provisions shall be made so that the successors and assigns of Fiserv, Fiserv Solutions or the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 6.16 and Section 6.17. SECTION 6.17 Officer and Director Insurance. Immediately prior to the Effective Time, the Company shall obtain "tail insurance coverage" to continue in effect following the Effective Time the coverage currently provided to current and former directors and officers of the Company, and naming BIG as an additional insured. The Surviving Corporation shall not cancel such coverage at any time before December 31, 2004. The Company shall pay half the premium for the "tail insurance coverage" and, as provided in the Agreement to Facilitate Merger (as hereinafter defined), BIG shall pay the other half, plus any additional premium payable in respect of naming it as an additional insured. SECTION 6.18 Deposit of Aggregate Merger Consideration. Prior to the Closing, Fiserv shall deposit, or cause to be deposited, with the Paying Agent an amount of cash sufficient to satisfy the obligations to pay the Merger Consideration as provided in Article III hereof, except any obligations to pay Merger Consideration to the parties to the Agreement to Facilitate Merger, dated the date hereof, by and among Fiserv, Fiserv Solutions, Fiserv Sub and the Principal Shareholders, in substantially the form and to the effect set forth in Exhibit B hereto (the "Agreement to Facilitate Merger"). ARTICLE VII CONDITIONS PRECEDENT SECTION 7.01 Conditions to Obligations of Fiserv, Fiserv Solutions, Fiserv Sub, and the Company. The respective obligations of each party to consummate the Merger shall be subject to the fulfillment at or prior to the Closing of the following conditions: (a) No Injunction. None of Fiserv, Fiserv Solutions, Fiserv Sub, or the Company shall be subject to any final order, decree or injunction of a court of competent jurisdiction within the United States that (i) prevents the consummation of the Merger or (ii) would impose any material limitation on the ability of Fiserv Solutions effectively to exercise full rights of ownership of the Company or the assets or business of the Company. -40- (b) Shareholder Approval. (i) The approval of the shareholders of the Company hereof shall have been obtained, in accordance with the Florida Law and the Company's Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws. (ii) The approval of at least 50.01% of the outstanding Shares that are not owned or controlled by those shareholders of the Company who are parties to the Agreement to Facilitate Merger shall have been obtained. SECTION 7.02 Conditions Precedent to the Obligations of Fiserv, Fiserv Solutions and Fiserv Sub. The obligations of Fiserv, Fiserv Solutions and Fiserv Sub to consummate the Merger under this Agreement are subject to the satisfaction or waiver by Fiserv, Fiserv Solutions and Fiserv Sub prior to or at the Effective Time of each of the following conditions: (a) Accuracy of Representations and Warranties. The representations and warranties of the Company contained in Section 5.01 of this Agreement shall be true and correct at and as of the Effective Time as though made at and as of that time other than such representations and warranties as are specifically made as of another date (provided, however, that this condition shall be deemed satisfied unless all inaccuracies in such representations and warranties (considered collectively) would reasonably be expected to have a Material Adverse Effect on the Company or would prevent the Company from consummating the Merger), and the Company shall have delivered to Fiserv, Fiserv Solutions and Fiserv Sub a certificate of an authorized officer of the Company to that effect. (b) Compliance with Covenants. The Company shall have performed and complied in all material respects with all covenants of this Agreement to be performed or complied with by it at or prior to the Effective Time, and the Company shall have delivered to Fiserv, Fiserv Solutions and Fiserv Sub a certificate of an authorized officer of the Company to that effect. (c) Opinion of Counsel for the Company. Fiserv, Fiserv Solutions and Fiserv Sub shall have received an opinion of Foley & Lardner, counsel to the Company, dated the Closing Date, substantially in the form and to the effect set forth in Exhibit C annexed hereto. (d) Legal Actions or Proceedings. No legal action or proceeding shall have been instituted after the date hereof against the Company or against Fiserv, Fiserv Solutions or Fiserv Sub, arising by reason of the Merger pursuant to this Agreement, which would reasonably be expected to have a Material Adverse Effect on the Company. (e) Tax Matters. The Company shall have delivered to Fiserv and Fiserv Solutions an executed FIRPTA Affidavit with respect to the Company -41- substantially in the form of Exhibit D annexed hereto, signed by the Company under penalties of perjury. (f) Consents. On or prior to the Effective Time, the Company shall have obtained the consents or waivers to the Merger set forth in Exhibit E annexed hereto. (g) Supporting Documents. On or prior to the Effective Time, Fiserv, Fiserv Solutions, Fiserv Sub and their counsel shall have received copies of the following supporting documents: (i) (A) copies of the Amended and Restated Articles of Incorporation of the Company and all amendments thereto, certified as of a recent date by the Secretary of State of the State of Florida and (B) a certificate of said Secretary dated as of a recent date as to the active status (and good standing and as to tax status, if available from such Secretary) of the Company; and (ii) certificates of the Secretary or an Assistant Secretary of the Company, dated the Effective Time, and certifying substantially to the effect: (A) that attached thereto is a true and complete copy of the Amended and Restated Bylaws of the Company as in effect on the date of such certification; (B) that attached thereto is a true and complete copy of resolutions adopted by the Board of Directors authorizing the execution, delivery and performance of this Agreement and that all such resolutions and minutes are still in full force and effect and are all the resolutions and minutes adopted in connection with the transactions contemplated by this Agreement; and (C) as to the incumbency and specimen signature of each officer of the Company executing this Agreement and any certificate or instrument furnished pursuant hereto, and a certificate by another officer of the Company as to the incumbency and signature of the officer signing the certificate referred to in this paragraph (ii). SECTION 7.03 Conditions Precedent to the Obligations of the Company. The obligations of the Company to consummate the Merger under this Agreement are subject to the satisfaction or waiver by the Company prior to or at the Effective Time of each of the following conditions: (a) Accuracy of Representations and Warranties. The representations and warranties of Fiserv, Fiserv Solutions and Fiserv Sub contained in Section 5.02 of this Agreement shall be true and correct on and as of the Effective Time as though made at and as of that date, other such representations and warranties as are specifically made as of another date (provided, however, that this condition shall be deemed satisfied unless all inaccuracies in such representations and warranties (considered collectively) would reasonably be expected to have a Material Adverse Effect on Fiserv, Fiserv Solutions and Fiserv Sub collectively or would prevent any of them from consummating the Merger), -42- and Fiserv, Fiserv Solutions and Fiserv Sub shall each have delivered to the Company a certificate of any authorized officer thereof to that effect. (b) Compliance with Covenants. Each of Fiserv, Fiserv Solutions and Fiserv Sub shall have performed and complied in all material respects with all covenants of this Agreement to be performed or complied with by Fiserv, Fiserv Solutions and/or Fiserv Sub on or prior to the Effective Time, and Fiserv, Fiserv Solutions and Fiserv Sub shall each have delivered to the Company and the Shareholders a certificate of an authorized officer thereof to such effect. (c) Opinion of Counsel for Fiserv, Fiserv Solutions and Fiserv Sub. The Company shall have received an opinion of Charles W. Sprague, General Counsel of Fiserv, dated the Closing Date, substantially in the form and to the effect set forth in Exhibit F annexed hereto. (d) Legal Actions or Proceedings. No legal action or proceeding shall have been instituted which would reasonably be expected to have a Material Adverse Effect on Fiserv, Fiserv Solutions or Fiserv Sub or prevent Fiserv, Fiserv Solutions or Fiserv Sub from consummating the Merger or the other transactions contemplated by this Agreement. (e) Supporting Documents. On or prior to the Effective Time, the Company shall have received copies of the following supporting documents: (i) (A) copies of the Articles of Incorporation of Fiserv, Fiserv Solutions and Fiserv Sub, and all amendments thereto, certified as of a recent date by the Department of Financial Institutions of the State of Wisconsin and the Secretary of State of the State of Florida, respectively, (B) a certificate of said Department dated as of a recent date as to the status of Fiserv and Fiserv Solutions and (C) a certificate of said Secretary dated as of a recent date as to the active status and due incorporation of Fiserv Sub; and (ii) a certificate of the Secretary or an Assistant Secretary of each of Fiserv, Fiserv Solutions and Fiserv Sub dated the Effective Time and certifying substantially to the effect (A) that attached thereto is a true and complete copy of the By-laws of the particular company as in effect on the date of such certification; (B) that attached thereto is a true and complete copy of resolutions adopted by the Board of Directors of the particular company authorizing the execution, delivery and performance of this Agreement and that all such resolutions are still in full force and effect and are all the resolutions adopted in connection with the transactions contemplated by this Agreement; and (C) as to the incumbency and specimen signature of each officer of the particular company executing this Agreement and a certification by another officer of such company as to the incumbency and signature of the officer singing the certificate referred to in this paragraph (ii). -43- ARTICLE VIII TERMINATION; AMENDMENT; WAIVER SECTION 8.01 Termination. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time: (a) by mutual consent of Fiserv, Fiserv Solutions and Fiserv Sub, on the one hand, and the Company, on the other hand; (b) by either Fiserv, Fiserv Solutions and Fiserv Sub, on the one hand, or the Company on the other hand, if (i) the Effective Time shall not have occurred on or before the date that is six months from the date of this Agreement (provided that the right to terminate this Agreement under this Section 8.01(b) shall not available to any party whose failure to fulfill, or cause to be fulfilled, any obligation under this Agreement has been the cause of or resulted in the failure of the Effective Time to occur on or before such time) or (ii) any court of competent jurisdiction or other governmental body shall have issued an order, decree or ruling or taken any other action (which order, decree or ruling the parties shall use their commercially reasonable efforts to lift or reverse) permanently restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action shall have become final and nonappealable, provided, however, if a proceeding shall have been initiated by a Governmental Entity to restrain, enjoin or otherwise prohibit the Merger or any other transaction contemplated by the Agreement, and such proceeding is continuing on the date six months after the date referred to in clause (b)(i) above, then either Fiserv, Fiserv Solutions and Fiserv Sub, on the one hand, or the Company, on the other hand, may terminate this Agreement and abandon the Merger provided that such terminating party shall have used commercially reasonable efforts to cause any such proceeding to be dismissed as to all parties thereto; or (c) by either Fiserv, Fiserv Solutions and Fiserv Sub, on the one hand, or the Company on the other hand, if the Company shareholder approvals set forth in Section 7.01(b) are not received at the Company Special Meeting; except that the right to terminate this Agreement under this Section 8.01(c) will not be available to any party whose failure to perform any material obligation under this Agreement has been the proximate cause of, or resulted in, the failure to obtain the requisite vote of the shareholders of the Company; (d) by Fiserv, Fiserv Solutions and Fiserv Sub if either (i) the Company has breached its obligations under Section 6.07 in any material respect, (ii) the Board of Directors of the Company has recommended, approved, accepted, or entered into an agreement regarding, a Superior Proposal, (iii) the Board of Directors of the Company has withdrawn or modified in a manner adverse to Fiserv its recommendation of the Merger, or (iv) a tender offer or exchange offer for 15% or more of the outstanding shares of Company Common Stock is commenced, and the Board of Directors of the Company, within 10 business days after such tender offer or exchange offer is so commenced, either -44- fails to recommend against acceptance of such tender offer or exchange offer by its shareholders or takes no position with respect to the acceptance of such tender offer or exchange offer by its shareholders; (e) by the Company prior to the Company shareholder approvals set forth in Section 7.01(b) being obtained if (i) it is not in material breach of its obligations under this Agreement and has complied with, and continues to comply with, all requirements, conditions and procedures of Section 6.07 in all material respects, (ii) the Board of Directors of the Company has complied with, and continues to comply with, all requirements, conditions and procedures of Section 6.07 in all material respects and has authorized, subject to complying with the terms of this Agreement, the Company to enter into a binding written agreement concerning a transaction that constitutes a Superior Proposal and the Company notifies Fiserv in writing that it intends to enter into such binding agreement, which notice must have attached to it the most current version of such agreement, and (iii) Fiserv does not make, within ten days after receipt of such notice from the Company, any offer that the Board of Directors of the Company reasonably and in good faith determines, after consultation with its financial and legal advisors, is at least as favorable to the shareholders of the Company as the Superior Proposal and during such ten-day period the Company reasonably considers and discusses in good faith all proposals submitted by Fiserv and, without limiting the foregoing, meets with, and causes its financial advisors and legal advisors to meet with, Fiserv and its advisors from time to time as requested by Fiserv to reasonably consider and discuss in good faith Fiserv's proposals. The Company agrees (x) that it will not enter into a binding agreement referred to in clause (ii) above until at least the 11/th/ day after Fiserv has received the notice to Parent required by clause (ii) above, and (y) to notify Fiserv promptly if its intention to enter into the binding agreement included in its notice to Fiserv shall change at any time after giving such notice; (f) by Fiserv, Fiserv Solutions and Fiserv Sub if (i) Fiserv, Fiserv Solutions and Fiserv Sub are not in material breach of their obligations under this Agreement and (ii) there has been a material breach by the Company of any of its representations, warranties, or obligations under this Agreement such that the conditions in Section 7.02 cannot be satisfied, and the breach is not curable or, if curable, is not cured by the Company or such Principal Shareholder within 30 calendar days after receipt by the Company of written notice from Fiserv of such breach; (g) by the Company if (i) the Company is not in material breach of its obligations under this Agreement and (ii) there has been a material breach by Fiserv, Fiserv Solutions or Fiserv Sub of any of their representations, warranties, or obligations under this Agreement such that the conditions in Section 7.03 cannot be satisfied, and the breach is not curable or, if curable, is not cured by Fiserv, Fiserv Solutions or Fiserv Sub within 30 calendar days after receipt by Fiserv of written notice from the Company of such breach. -45- SECTION 8.02 Effect of Termination. In the event of the termination and abandonment of this Agreement pursuant to Section 8.01, this Agreement shall forthwith become void and have no effect, without any liability whatsoever on the part of any party or its affiliates, directors, officers or shareholders, other than pursuant to the provisions of this Section 8.02. (a) Nothing contained in this Section 8.02 shall relieve any party from liability for any willful breach of the covenants or agreements set forth in this Agreement, and the Confidentiality Agreement shall survive the termination and abandonment of this Agreement. (b) In recognition of the time, efforts, and expenses expended and incurred by Fiserv and its subsidiaries with respect to the Company and the opportunity that the acquisition of the Company presents to Fiserv, if this Agreement is (i) terminated pursuant to Section 8.01(c) or Section 8.01(d) and within twelve (12) months of the date of such termination, the Company shall have entered into an agreement for, or consummated, a transaction described in the definition of "Acquisition Proposal", or (ii) terminated pursuant to Section 8.01(e), then the Company shall pay to Fiserv a fee in the amount of One Million Two Hundred Thousand Dollars ($1,200,000) (the "Fee"), payable in the event of clause (i) above only upon the date such transaction is consummated and payable in the event of clause (ii) above upon the date that this Agreement is so terminated; provided, however, that the Fee will not be owed to Fiserv by the Company in the event that the Vote Fee (as defined in the Agreement to Facilitate Merger) is payable by BIG upon termination of the Merger Agreement and is not otherwise payable at such time by the Company. The Fee, if payable, shall be paid by wire transfer of immediately available funds to an account designated by Fiserv for such purpose. The Company acknowledges that the agreements contained in this Section 8.02(b) are an integral part of the transactions contemplated by this Agreement and are not a penalty, and that, without these agreements, Fiserv would not enter into this Agreement. If the Company fails to pay promptly the fee due pursuant to this Section 8.02(b), the Company shall also pay to Fiserv Fiserv's and its subsidiaries' reasonable costs and expenses (including reasonable legal fees and expenses) in connection with any action, including the filing of any lawsuit or other legal action, taken to collect payment. SECTION 8.03 Amendment. This Agreement may not be amended except by an instrument in writing signed on behalf of all the parties. SECTION 8.04 Extension; Waiver. At any time prior to the Effective Time, Fiserv, Fiserv Solutions and Fiserv Sub, on the one hand, or the Company on the other hand, may (a) extend the time for the performance of any of the obligations or other acts of the other party, (b) waive any inaccuracies in the representations and warranties of the other party contained herein or in any document, certificate or writing delivered pursuant hereto or (c) to the extent permitted by applicable laws, waive compliance by the other party with any of the agreements or conditions contained herein. Any agreement on the -46- part of any party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party. ARTICLE IX MISCELLANEOUS SECTION 9.01 Expenses, Etc. Whether or not the transactions contemplated by this Agreement are consummated, none of the parties shall have any obligation to pay any of the fees and expenses of the other parties incident to the negotiation, preparation and execution of this Agreement, including the fees and expenses of counsel, accountants and other experts. SECTION 9.02 Execution in Counterparts. For the convenience of the parties, this Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. SECTION 9.03 Notices. All notices and other communications which are required or may be given pursuant to the terms of this Agreement shall be in writing, shall be effective when received, and shall in any event be deemed to have been received (a) when delivered, if delivered personally or by commercial delivery service, (b) five business days after deposit with the U.S. Mail, if mailed by registered or certified mail (return receipt requested), (c) one business day after the business day of timely deposit with a recognized national courier service for next day delivery (or two business days after such deposit if timely deposited for second business day delivery) or (d) one business day after delivery by facsimile transmission with copy by U.S. Mail, if sent via facsimile plus mail copy (with acknowledgement of complete transmission), to the parties as follows: If to the Company, to: Insurance Management Solutions Group, Inc. 801 94th Avenue North St. Petersburg, FL 33702 Telephone Number: 727-803-2040 FAX: 727-803-4081 Attention: David M. Howard With a copy to: Foley & Lardner 330 North Wabash Avenue Suite 3300 Chicago, IL 60611 Telephone Number: 312-755-1900 FAX: 312-755-1925 Attention: Todd B. Pfister -47- If to Fiserv, Fiserv Solutions or Fiserv Sub, to: Fiserv, Inc. Fiserv Solutions, Inc. Fiserv Merger Sub, Inc. 255 Fiserv Drive Brookfield, WI 53045 or P.O. Box 979 Brookfield, WI 53008-0979 Telephone Number: 262-879-5000 FAX: 262-879-5245 Attention: Kenneth R. Jensen With a copy to: Charles W. Sprague Fiserv, Inc. 255 Fiserv Drive Brookfield, WI 53045 or P.O. Box 979 Brookfield, WI 53008-0979 Telephone Number: 262-879-5517 FAX: 262-879-5532 or such other address or addresses as any party shall have designated by notice in writing to the other parties. SECTION 9.04 Entire Agreement. This Agreement, its Exhibits and Schedules and the Confidentiality Agreement constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, oral and written, among the parties hereto with respect to the subject matter hereof. No representation, warranty, promise, inducement or statement of intention has been made by any party hereto which is not embodied in this Agreement, and no party shall be bound by, or be liable for, any alleged representation, warranty, promise, inducement or statement of intention not embodied herein or therein. SECTION 9.05 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to any conflict of law provisions that would defer to the laws of another jurisdiction. The rights and obligations of the parties hereunder shall be governed by and determined in accordance with such laws. -48- SECTION 9.06 Binding Effect; Benefits. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. Notwithstanding anything contained in this Agreement to the contrary, nothing in this Agreement, expressed or implied, is intended to confer on any person other than the parties or their respective successors and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement. SECTION 9.07 Investigation; Non-Survival of Representations and Warranties. The respective representations and warranties of Fiserv, Fiserv Solutions and Fiserv Sub and the Company contained herein or in any certificates or other documents delivered prior to or at the Closing shall not be deemed waived or otherwise affected by any investigation made by any party hereto. Each and every representation and warranty contained herein or in any certificates or other documents delivered prior to or at the Closing shall be deemed to be conditions to the Merger in accordance with Article VII hereof and shall not survive the Merger. This Section 9.07 shall have no effect upon any covenant of the parties hereto, whether to be performed before or after the Closing. SECTION 9.08 Specific Performance. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the parties further agree that each party will be entitled to seek an injunction or restraining order to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other right or remedy to which such party may be entitled under this Agreement, at law or in equity. SECTION 9.09 Assignability. Neither this Agreement nor any of the parties' rights hereunder shall be assignable by any party without the prior written consent of the other parties. SECTION 9.10 Prevailing Party. The prevailing party in any suit or action brought against any other party to enforce the terms of this Agreement or any rights or obligations hereunder shall be entitled to receive reimbursement of its reasonable costs, expenses and attorneys' fees and disbursements, including the costs and expenses of experts, incurred in connection with such suit or action. SECTION 9.11 Public Announcements. Fiserv, Fiserv Solutions and Fiserv Sub, on the one hand, and the Company, on the other hand, will consult with each other before issuing any press release or otherwise making any public statement with respect to the transactions contemplated herein and shall not issue any such press release or make any such public statement without the approval of the others, unless counsel has advised such party that such release or other public statement must be issued immediately and the issuing party has not been able, despite its good faith efforts, to secure the prior approval of the other parties. SECTION 9.12 Invalid Provisions. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future law, rule or regulation, -49- such provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision has never comprised a part hereof. The remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible. SECTION 9.13 Interpretation. Unless otherwise qualified, references in this Agreement to "Article", "article", "Section" or "section" are to provisions of this Agreement and a reference thereto includes any subparts. The Table of Contents and the descriptive headings of the articles and sections, or of or in the Exhibits and Schedules, are inserted for convenience only and are not a part of this Agreement. As used herein, the singular includes the plural, the plural includes the singular, and words in one gender include the others. As used herein, the terms "herein", "hereunder" and "hereof" refer to the whole of this Agreement, and "include", "including" and similar terms are not words of limitation. -50- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written. FISERV, INC. By /s/ Leslie M. Muma -------------------------------------------- Name: Leslie M. Muma Title: President and Chief Executive Officer FISERV SOLUTIONS, INC. By /s/ Leslie M. Muma -------------------------------------------- Name: Leslie M. Muma Title: President FISERV MERGER SUB, INC. By /s/ Leslie M. Muma -------------------------------------------- Name: Leslie M. Muma Title: President INSURANCE MANAGEMENT SOLUTIONS GROUP, INC. By /s/ David M. Howard -------------------------------------------- Name: David M. Howard Title: Chairman of the Board, President and Chief Executive Officer -51- EX-99.1 4 dex991.txt AGREEMENT TO FACILITATE MERGER EXHIBIT 99.1 AGREEMENT TO FACILITATE MERGER THIS AGREEMENT TO FACILITATE MERGER (this "Agreement") is made and entered into as of April 9, 2003 by and among FISERV, INC., a Wisconsin corporation ("Fiserv"), FISERV SOLUTIONS, INC., a Wisconsin corporation ("Fiserv Solutions"), FISERV MERGER SUB, INC., a Delaware corporation ("Fiserv Sub") and a wholly owned subsidiary of Fiserv Solutions, BANKERS INSURANCE GROUP, INC., a Florida corporation ("BIG"), BANKERS INSURANCE COMPANY, a Florida property and casualty insurance company ("BIC"), BANKERS SECURITY INSURANCE COMPANY, a Florida property and casualty insurance company ("BSIC"), and BONDED BUILDERS SERVICE CORP., a Florida home warranty company ("BBSC," and with BIG, BIC and BSIC, each a "Shareholder" or, collectively, the "Shareholders"). WHEREAS, as of the date hereof, the Shareholders own beneficially and of record or have the power to vote, or direct the vote of, an aggregate of 8,354,884 shares of common stock, par value $0.01 per share ("Company Common Stock"), of Insurance Management Solutions Group, Inc., a Florida corporation (the "Company"), representing approximately 68% of the outstanding Company Common Stock as of the date hereof; and WHEREAS, on the date hereof, Fiserv, Fiserv Solutions, Fiserv Sub and the Company are entering into that certain Agreement and Plan of Merger, dated as of even date herewith (as entered into and as the same may be modified or amended or any of its provisions waived pursuant to the terms thereof, the "Merger Agreement"; capitalized terms used but not defined in this Agreement shall have the meanings ascribed to them in the Merger Agreement), which provides, upon the terms and subject to the conditions thereof, for the merger of Fiserv Sub with and into the Company (the "Merger"); and WHEREAS, the Shareholders wish to see the Merger consummated, and have determined the consummation of the Merger to be in the best interests of the Shareholders; and WHEREAS, as a condition to the willingness of Fiserv, Fiserv Solutions and Fiserv Sub to enter into the Merger Agreement, Fiserv, Fiserv Solutions and Fiserv Sub have requested that the Shareholders agree, and, in order to induce Fiserv, Fiserv Solutions and Fiserv Sub to enter into the Merger Agreement, the Shareholders have agreed, to enter into this Agreement; NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows: 1. Vote in Favor of Merger. During the period commencing on the date hereof and terminating upon the earlier of the Effective Time or the termination of the Merger Agreement in accordance with its terms, each Shareholder, in its capacity as a shareholder of the Company and holder of any proxy or other right to cause or direct the voting of any shares of Company Common Stock, agrees to (a) vote all shares of Company Common Stock presently owned by Shareholder or any of its Affiliates or for which Shareholder has voting power, and all shares of Company Common Stock with respect to which Shareholder in the future acquires ownership or is otherwise granted or obtains voting power, at any meeting of the Shareholders of the Company (or any adjournment thereof), (i) in favor of the approval and adoption of the Merger Agreement and the transactions contemplated thereby, including without limitation the Merger; and (ii) against any action that could reasonably be expected to impede, interfere, delay, or discourage the Merger, facilitate an acquisition of the Company or all or substantially all of its assets or business, in any manner, by a party (other than Fiserv or a subsidiary of Fiserv), or result in any breach of representation, warranty, covenant or agreement of the Company under the Merger Agreement, or (b) in the event written consents are sought from the shareholders of the Company with respect to the actions proposed in (i) or (ii) above, cause to be executed, with respect to all shares of Company Common Stock then owned by Shareholder or as to which Shareholder has the power to vote or to direct the voting of, a written consent or written consents to such proposed action. To the extent inconsistent with the foregoing provisions of this Section 1, each Shareholder hereby revokes any and all previous proxies with respect to any shares of Company Common Stock that such Shareholder owns or has the right to vote. In addition, each Shareholder agrees not to dispose of or otherwise sell any shares of Company Common Stock owned by it, except to other Shareholders subject to this Agreement. 2. No Solicitation. During the period commencing on the date hereof and terminating upon the earlier of the Effective Time or the termination of the Merger Agreement in accordance with its terms, each Shareholder hereby agrees, and agrees to use commercially reasonable efforts to cause its Affiliates, officers, directors, employees or consultants or agents, not to (a) directly or indirectly, solicit, initiate, encourage, accept or otherwise facilitate the making of an Acquisition Proposal, (b) participate or engage in or encourage in any way negotiations or discussions concerning, or provide any non-public information to, any person or entity relating to an Acquisition Proposal, or which may reasonably be expected to lead to an Acquisition Proposal or (c) agree to or endorse any Acquisition Proposal; provided, however, that nothing contained in this Section 2 or in any other provision of this Agreement will prohibit the Company or any individual who is a member of the Board of Directors of the Company from taking and disclosing to the Company's shareholders a position contemplated by Rule 14e-2 promulgated under the Exchange Act or from making any legally required disclosure to the Company's shareholders or to the extent otherwise specifically permitted by the Merger Agreement. For purposes of this Agreement, "Affiliate" shall mean, with respect to any person or entity, any person or entity that, directly or indirectly, controls, or any entity that is controlled by, or is under common control with that Person. 3. Sale of Shares held by the Shareholders and their Affiliates. The Shareholders agree that, as provided in the Merger Agreement, the Merger Consideration to be paid pursuant to the Merger Agreement for all of the shares of Company Common Stock held by the Shareholders and their Affiliates that are not individuals shall be $3.26 per share, in cash, without interest. 4. Limited Indemnification and Release. BIG will indemnify the Indemnitees (as hereinafter defined) in accordance with the terms set forth on Schedule 4 attached hereto. 2 Each of the Shareholders grants the release set forth on Schedule 4 attached hereto. 5. Non-Competition. Each Shareholder, on behalf of itself and each of its current and future subsidiaries or Affiliates, covenants and agrees from the Effective Time (except with respect to clause (b), as qualified by clause (ii), from the date hereof) until the third anniversary of the Effective Time (the "Non-Competition Period") not to, directly or indirectly, (a) engage or invest in, or have any competitive business relationship with, either as an owner, partner, agent, consultant, creditor or otherwise, any business or commercial activity relating to the processing of flood insurance in the United States or (b) solicit, hire, cause to be hired, engage the services of or otherwise enable, encourage or assist, directly or indirectly, any persons which they knew or reasonably should know are employees of the Company or any persons who are employees of Fiserv or its subsidiaries with whom they came into contact in connection with the transactions contemplated hereby to terminate their employment with the Company or Fiserv or its Affiliate, as the case may be. Notwithstanding the foregoing, either BIG or any other Shareholder may (i) own capital stock in a publicly-traded company not to exceed 1% of the outstanding capital stock of such company and (ii) solicit or hire any such IT personnel of the Company as are agreed to in writing by the Company and such Shareholder prior to the Effective Time. Each of Fiserv, Fiserv Solutions and Fiserv Sub, on behalf of itself and each of its current and future subsidiaries or Affiliates, covenants and agrees that during the Non-Competition Period, they shall not solicit, hire, cause to be hired or otherwise enable, encourage or assist, directly or indirectly, any persons which they know or reasonably should know are employees of the Shareholders. Each party agrees that the foregoing limitations are reasonable in time and scope. Each party's obligations pursuant to this Section 5 shall arise only if the Merger becomes effective (except with respect to clause (b), as qualified by clause (ii), which shall be effective from the date hereof) and then such obligations shall survive for the Non-Competition Period. If the transactions contemplated by the Merger Agreement are abandoned in accordance with the Merger Agreement, the agreement set forth in this Section 5 shall terminate immediately upon such abandonment. 6. Representations and Warranties of the Shareholders. Each of the Shareholders represents and warrants to Fiserv, Fiserv Solutions and Fiserv Sub that: (i) each such Shareholder has the legal capacity to enter into and perform all of its respective obligations under this Agreement; (ii) the execution, delivery and performance of this Agreement by each such Shareholder will not violate any other agreement to which such Shareholder is a party, including, without limitation, any voting agreement, shareholders agreement or voting trust; (iii) this Agreement has been duly executed and delivered by each such Shareholder and constitutes a legal, valid and binding agreement of each such Shareholder, enforceable against it in accordance with its terms; (iv) each such Shareholder owns beneficially, and has full voting power with respect to, the shares of Company Common Stock that it is making its agreement with respect to under Section 1 hereof, other than shares beneficially owned by Affiliates over which such Shareholder does not have voting power, and; (v) no shares of Company Common Stock held by such Shareholder are subject to any voting agreement other than this Agreement. 7. Officer and Director Insurance. After the Effective Time, Fiserv shall take all actions to 3 ensure that the Surviving Corporation complies with its obligations set forth in Section 6.17 of the Merger Agreement. To the extent not paid prior to the Effective Time, Fiserv shall cause the Surviving Corporation to pay half the premium for any "tail coverage" policy acquired, and BIG agrees to pay the other half of the premium for any such "tail coverage" policy acquired plus any premium payable in respect of naming BIG as an additional insured under such policy. 8. Successors and Assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties, except that any Shareholder may transfer shares of Company Common Stock, together with its rights, interests and obligations hereunder to BIG or any direct or indirect wholly owned subsidiary of BIG; provided, however, that no such assignment shall relieve any party of its obligations hereunder; and provided, further, however, that, at the Effective Time upon consummation of the Merger, by operation of law, the Surviving Corporation shall succeed to Fiserv Sub's rights hereunder. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. 9. Specific Performance. The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement is not performed according to its specific terms and that the parties shall be entitled to seek specific performance of the terms hereof, in addition to any other remedy at law or in equity. The parties agree that in the event any or all of the Shareholders do not perform in full their obligations under Sections 1 and 2 hereof, BIG shall pay Fiserv (the "Vote Fee"), in consideration of the considerable effort and expense Fiserv has incurred in connection with the transactions contemplated under this Agreement, $1,200,000 payable upon the termination of the Merger Agreement; provided, however that (a) the Vote Fee will not be owed to Fiserv by BIG in the event that (i) the Fee is payable by the Company pursuant to the terms of the Merger Agreement or (ii) the approval of shareholders has been obtained in accordance with Section 7.01(b) of the Merger Agreement, and (b) the Fee under the Merger Agreement shall not be owed by the Company at any time after the Vote Fee has been paid by BIG. 10. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same document. 11. Further Assurances. Each of the Shareholders shall execute and deliver such additional documents and take such further action as may be necessary or desirable to consummate the transactions contemplated by this Agreement. 12. Third-Party Beneficiaries. Nothing in this Agreement, expressed or implied, shall be construed to give any person other than the parties hereto any legal or equitable right, remedy, or claim under or by reason of this Agreement or any provision contained herein. 13. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made and to be performed therein. 4 14. Jurisdiction and Venue. The parties agree that any proceeding relating to this Agreement shall be brought in a court of Florida. Each of the parties consents to personal jurisdiction in any such action brought in any such Florida court, consents to service of process by registered mail made upon such party and such party's agent, and waives any objection to venue in any such Florida court or to any claim that any such Florida court is an inconvenient forum. The prevailing party in any suit or action brought against any other party to enforce the terms of this Agreement or any rights or obligations hereunder shall be entitled to receive reimbursement of its costs, expenses and attorneys' fees (internal and external) and disbursements, including the costs and expenses of experts and internal resources expended, actually incurred in connection with such suit or action. 15. No Amendment of Merger Agreement. Fiserv, Fiserv Solutions and Fiserv Sub shall not amend the Merger Agreement without the prior written consent of BIG, which consent shall not be unreasonably withheld. 16. Payment for Shares. At the Effective Time, (a) each of the Shareholders and their Affiliates shall surrender their Company Certificates representing all shares of Company Common Stock held by the Shareholders or their Affiliates and (b) Fiserv shall pay to each Shareholder or their Affiliates, as the case may be, by wire transfer cash in the amount of $3.26 per share of Company Common Stock represented by each Shareholder's Company Certificates to such accounts as are designated by such Shareholders or their Affiliates. 17. Termination. This Agreement shall terminate upon the earlier of the Effective Time or termination of the Merger Agreement in accordance with its terms; provided, however, that the provisions of Section 4, Section 5, Section 6, Section 7, Section 8, Section 9, Section 10, Section 11, Section 12, Section 13, Section 14 and this Section 17 shall continue in effect following the Effective Time in accordance with the respective provisions thereof, and the provisions of Section 9 and Section 14 shall continue in effect following the termination of the Merger Agreement. 5 IN WITNESS WHEREOF, each of Fiserv, Fiserv Solutions and Fiserv Sub, on the one hand, and the Shareholders, on the other hand, has caused this Agreement to Facilitate Merger to be executed by its duly authorized officer, as of the date and year first above written. FISERV, INC. BANKERS INSURANCE GROUP, INC. By /s/ Leslie M. Muma By /s/ Robert M. Menke --------------------------------- ------------------------------- Name: Leslie M. Muma Name: Robert M. Menke Title: President and Chief Title: President Executive Officer FISERV SOLUTIONS, INC. BANKERS INSURANCE COMPANY By /s/ Leslie M. Muma By /s/ David K. Meehan --------------------------------- ------------------------------- Name: Leslie M. Muma Name: David K. Meehan Title: President Title: President FISERV MERGER SUB, INC. BANKERS SECURITY INSURANCE COMPANY By /s/ Leslie M. Muma By /s/ David K. Meehan --------------------------------- ------------------------------- Name: Leslie M. Muma Name: David K. Meehan Title: President Title: President BONDED BUILDERS SERVICE CORP. By /s/ Brian Kesneck ------------------------------- Name: Brian Kesneck Title: Chairman 6 EX-99.2 5 dex992.txt PRESS RELEASE EXHIBIT 99.2 News Release [FISERV LOGO] For more information contact: Leslie M. Muma, President and CEO (262) 879-5000 For immediate release: April 9, 2003 Fiserv, Inc. Signs Definitive Agreement to Acquire Insurance Management Solutions Group, Inc. National Provider To Enhance Fiserv Insurance Solutions Group Offerings Brookfield, Wisconsin, Date Pending--Fiserv, Inc. (Nasdaq: FISV) and Insurance Management Solutions Group, Inc. (OTC: INMG) announced today the signing of a definitive merger agreement whereby Fiserv will acquire Insurance Management Solutions Group, Inc. (IMSG). Upon shareholder approval and completion of the merger, IMSG shareholders unaffiliated with Bankers Insurance Group, Inc. (BIG) will receive $3.30 per share in cash, and certain BIG-affiliated shareholders will receive $3.26 per share in cash. The total purchase price is approximately $40 million. Fiserv estimates that IMSG will have approximately $22 million of cash at closing. The merger is subject to customary conditions to closing, including receipt of IMSG shareholder approval, as well as the approval of the transaction by a majority of the IMSG shareholders other than certain BIG-affiliated shareholders. IMSG currently expects its 2003 revenues to be approximately $25 million. "With the addition of IMSG's client base to the existing Fiserv flood insurance business process outsourcing organization, we expect to continue to expand our portfolio of specialized information technology services," said Leslie M. Muma, President and CEO of Fiserv, Inc. "We are able to help our clients remain competitive in a dynamic financial services industry by growing our portfolio of insurance products and services. With the client base, people and resources gained through IMSG, we expect to continue to enhance our ability to serve the flood insurance market." IMSG provides a complete range of policy and claims administration services as well as financial and statistical reporting, with a focus on serving the flood insurance market. Supported by nearly 200 employees, IMSG manages and processes nearly 800,000 policies and more than 1 of 3 Fiserv, Corporate Headquarters, 255 Fiserv Drive, Brookfield, Wisconsin 53045 PH: 262-879-5000 Mailing Address: P.O. Box 979, Brookfield, Wisconsin 53008-0979 Internet: www.fiserv.com News Release [FISERV LOGO] 20,000 claims annually. Founded in late 1996, the company is based in St. Petersburg, Florida. "We expect the IMSG client base to bring an added volume to the flood business process outsourcing division of our Insurance Solutions Group," said Norman J. Balthasar, Senior Executive Vice President and Chief Operating Officer of Fiserv, Inc. "As we continue to leverage our operations, we anticipate the IMSG organization to enhance our service capabilities. We look forward to the IMSG team joining Fiserv." "At IMSG, we are committed to developing and maintaining the best possible uses of both current and emerging technology to benefit our clients, and as part of Fiserv we anticipate added resources to help us meet that objective," said David M. Howard, President and CEO of IMSG. "With the support of the advanced technology and resources of Fiserv, we expect to focus on responsiveness, vision and commitment to service." Fiserv, Inc. (Nasdaq: FISV) provides industry leading information management systems and services to the financial industry worldwide including transaction processing, outsourcing, business process outsourcing and software and systems solutions. The company serves more than 13,000 clients, including banks, broker-dealers, credit unions, financial planners/investment advisers, insurance companies and agents, self-insured employers, lenders and savings institutions. Headquartered in Brookfield, Wisconsin, Fiserv reported $2.3 billion in processing and services revenues for 2002. Fiserv can be found on the Internet at www.fiserv.com. Certain matters discussed in this press release are "forward-looking statements" intended to qualify for the safe harbors from liability established by the Private Securities Litigation Reform Act of 1995. These forward-looking statements can generally be identified as such because the context of the statement will include words such as "believes," "anticipates" or "expects," or words of similar import. Such forward-looking statements are subject to certain risks and uncertainties which could cause actual results to differ materially from those currently anticipated. Such risks and uncertainties include, among others, failure of the merger to be consummated in a timely manner or at all, failure of IMSG shareholders to approve the merger, the risk that IMSG's business will not be integrated successfully into Fiserv, failure to successfully manage relationships with customers during the pendency of and following the transaction, failure to realize anticipated synergies and cost savings, failure to reach anticipated revenue targets and other factors discussed 2 of 3 Fiserv, Corporate Headquarters, 255 Fiserv Drive, Brookfield, Wisconsin 53045 PH: 262-879-5000 Mailing Address: P.O. Box 979, Brookfield, Wisconsin 53008-0979 Internet: www.fiserv.com News Release [FISERV LOGO] in the filings of Fiserv and IMSG with the Securities and Exchange Commission (SEC). Investors should consider these factors carefully in evaluating the forward-looking statements and are cautioned not to place undue reliance on such forward-looking statements. In connection with the proposed merger, IMSG will file a proxy statement and other relevant documents concerning the proposed merger with the SEC. INVESTORS AND SECURITY HOLDERS ARE ADVISED TO READ THE PROXY STATEMENT WHEN IT BECOMES AVAILABLE AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION CONCERNING THE PROPOSED MERGER. Investors and security holders may obtain a copy of the proxy statement (when available) and other relevant documents concerning the proposed merger filed by Fiserv and IMSG with the SEC free of charge at the SEC's Web site at http://www.sec.gov. Copies of the proxy statement, once available, and each company's other filings with the SEC may also be obtained free of charge from the respective companies. Fiserv filings may be obtained by directing a request to Fiserv, Inc., Attention: Charles W. Sprague, Secretary, 255 Fiserv Drive, Brookfield, Wisconsin, 53045. IMSG filings may be obtained by directing a request to Insurance Management Solutions Group, Inc., Attention: David M. Howard, Chairman, President and Chief Executive Officer, 801 94th Avenue North, St. Petersburg, Florida 33702. Fiserv, IMSG and their respective directors and executive officers may be deemed to be participants in the solicitation of proxies from the stockholders of IMSG in favor of the merger. The directors and executive officers of Fiserv and their beneficial ownership of Fiserv common stock are set forth in the proxy statement for the 2003 annual meeting of shareholders of Fiserv. The directors and executive officers of IMSG and their beneficial ownership of IMSG common stock are set forth in IMSG's Annual Report on Form 10-K for the year ended December 31, 2002. Investors may obtain additional information regarding the interests of such participants by reading the proxy statement when it becomes available. # # # 3 of 3 Fiserv, Corporate Headquarters, 255 Fiserv Drive, Brookfield, Wisconsin 53045 PH: 262-879-5000 Mailing Address: P.O. Box 979, Brookfield, Wisconsin 53008-0979 Internet: www.fiserv.com -----END PRIVACY-ENHANCED MESSAGE-----