8-K

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of report (Date of earliest event reported): December 14, 2003

CONCORD EFS, INC.

(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)

Delaware	000-13848	04-2462252
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)

2525 Horizon Lake Drive, Suite 120, Memphis, Tennessee, 38133

(Address of Principal Executive Offices, including Zip Code)

(901) 371-8000

(Registrant’s Telephone Number, Including Area Code)

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

Item 5. Other Events.

On December 14, 2003, Concord EFS, Inc. and First Data Corporation entered into an agreement with the U.S. Department of Justice (DOJ), eight states and the District of Columbia that allows the companies to complete their proposed merger and calls for First Data to divest its 64 percent ownership of the NYCE Corporation.

In connection with the DOJ settlement, Concord and First Data entered into an Amendment and Abeyance Agreement (the “Amendment Agreement”) relating to their merger agreement, initially announced in April 2003 (the “Merger Agreement”), which calls for Concord to become a wholly owned subsidiary of First Data. Under the terms of the revised agreement, First Data will exchange 0.365 First Data common shares for every Concord common share. This exchange ratio represents a reduction from the original exchange ratio of 0.40 shares. The revised agreement increases transaction certainty by eliminating many, but not all, conditions to completing the merger. The revised agreement also extends the original January 31, 2004 end date to April 30, 2004 to allow sufficient time to obtain the necessary shareholder approval of the revised terms.

The foregoing description of the Amendment Agreement and the amended Merger Agreement is qualified in its entirety by reference to the full text of the Amendment Agreement, which is attached hereto as Exhibit 2.1, and the Merger Agreement, which was filed as Exhibit 2.1 to the Form 8-K filed by Concord on April 2, 2003, each of which is incorporated herein by reference. The foregoing description of the agreement with the DOJ is qualified in its entirety by reference to the full text of the Hold Separate Stipulation and Order, attached hereto as Exhibit 99.2, which is incorporated herein by reference.

A copy of the joint press release of Concord and First Data, dated December 15, 2003, announcing the signing of the Amendment Agreement is attached to this report as Exhibit 99.1.

Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.

(c) Exhibits
2.1	Amendment and Abeyance Agreement, dated as of December 14, 2003, among First Data Corporation, Monaco Subsidiary Corporation and Concord EFS, Inc.
99.1	Press Release issued by Concord EFS, Inc. and First Data Corporation, dated December 15, 2003
99.2	Hold Separate Stipulation and Order, dated December 14, 2003.

SIGNATURES

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.

		CONCORD EFS, INC.
			/S/    EDWARD T. HASLAM
Date:	December 15, 2003	By: Its:	Edward T. Haslam Senior Vice President, Chief Financial Officer and Treasurer

EX-2.1

Exhibit 2.1

AMENDMENT AND ABEYANCE AGREEMENT

AMENDMENT AND ABEYANCE AGREEMENT, dated as of December 14, 2003 (this “Amendment Agreement”), among First Data Corporation, a Delaware corporation (“Parent”), Monaco Subsidiary Corporation, a Delaware corporation and a wholly owned subsidiary of Parent (“Sub”), and Concord EFS, Inc., a Delaware corporation (the “Company”).

W I T N E S S E T H:

WHEREAS, the parties hereto are parties to an Agreement and Plan of Merger, dated as of April 1, 2003 (the “Merger Agreement”);

WHEREAS, due to the pendency of a proceeding (the “Antitrust Proceeding”) by the United States and certain States (the “Governmental Plaintiffs”) seeking to enjoin the merger contemplated by the Merger Agreement (the “Merger”), the parties hereto have been unable to consummate the Merger;

WHEREAS, simultaneously with the execution of this Amendment Agreement, the Governmental Plaintiffs are entering into a consent decree with Parent and the Company in substantially the form attached hereto as Exhibit I (the “Consent Decree”);

WHEREAS, this Amendment Agreement is being entered into in order to facilitate the Closing; and

WHEREAS, the Boards of Directors of the Company and Parent have determined that this Amendment Agreement is advisable to their respective stockholders.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained taken as a whole, Parent, Sub and the Company hereby agree as follows (all capitalized terms not defined herein shall have the meanings specified in the Merger Agreement):

Section 1. Amendments to the Merger Agreement.

(a) Subject to the stockholder approvals referred to in Section 3(a) hereof, Section 3.2(c) of the Merger Agreement is hereby amended so that the first sentence thereof shall read in its entirety as follows:

“Each Share issued and outstanding (other than Shares to be cancelled in accordance with Section 3.2(b)) shall be converted into 0.365 of a duly authorized, validly issued, fully paid and non-assessable Parent Share (the “Exchange Ratio”).”

(b) Subject to the stockholder approvals referred to in Section 3(a) hereof, the Merger Agreement is hereby amended to add the following as a new Section 8.1(f) thereof:

“(f) Further Stockholder Approvals. At a meeting of the stockholders of the Company held after the Company Stockholders Meeting, the holders of a majority of the outstanding shares of Company Common Stock shall have further approved this Agreement as amended by Section 1 of the Amendment and Abeyance Agreement, dated as of December 14, 2003, among the parties hereto (the “Amendment Agreement”) and, if a meeting of the stockholders of Parent is required by the rules of the NYSE (after consultations by Parent and the Company with the NYSE), at a meeting of the stockholders of the Parent held after the Parent Stockholders Meeting, a majority of the Parent Shares represented at such meeting (provided that at least a majority of the Parent Shares are represented in person or by proxy at such meeting) shall have approved the issuance of Parent Shares in the Merger.”

(c) Section 8.1(b) of the Merger Agreement is hereby amended so that it shall read in its entirety as follows:

“(b) No Prohibition. No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, law, ordinance, rule, regulation, judgment, decree, injunction or other order (whether temporary, preliminary or permanent) that is in effect and prohibits consummation of the Merger (collectively, an “Order”).”

The amendment to the Merger Agreement set forth in this Section 1(c) shall be effective immediately on the date hereof and without the approval of the stockholders of the Company.

(d) Subject to the stockholder approvals referred to in Section 3(a) hereof, the Merger Agreement is hereby amended so that Section 8.2(a) reads in its entirety as follows:

“(a) Accuracy of Representations and Warranties.

(i) The representations and warranties of Parent and Sub set forth in Sections 5.3 (Capital Structure) and 5.4 (Authority) shall be, to the Knowledge of Parent and Sub as of December 14, 2003, true and correct with respect to those matters that are qualified by Material Adverse Effect or materiality and shall be, to the Knowledge of Parent and Sub as of December 14, 2003, true and correct in all material respects with respect to those matters that are not so qualified, in each case as of December 14, 2003 as though made on and as of December 14, 2003 (except to the extent any such representation and warranty expressly speaks as of a specified date). The representations and warranties of Parent and Sub set forth in this Agreement, other than those listed in the preceding sentence, shall be, to the Knowledge of Parent and Sub as of December 14, 2003, true and correct as of December 14, 2003 unless the inaccuracies (without giving effect to any materiality or Material Adverse Effect qualifications or exceptions contained therein) in respect of such representations and warranties, taking all the inaccuracies in respect of all such representations and warranties together in their entirety, do not result in a Material Adverse Effect on Parent; provided, however, that representations and warranties that expressly speak as of a specified date shall only be true and correct to such extent as of such date.

(ii) The representations and warranties of Parent and Sub set forth in Section 5.3 (Capital Structure) shall be true and correct with respect to those matters that are qualified by Material Adverse Effect or materiality and shall be true and correct in all material respects with respect to those matters that are not so qualified, in each case as of the Effective Time as though made on and as of the Effective Time (except to the extent any such representation and warranty expressly speaks as of a specified date). The representations and warranties of Parent and Sub set forth in Sections 5.6 (SEC Documents and Other Reports) and 5.9 (Compliance with Laws; Permits) shall be true and correct at the Effective Time unless the inaccuracies (without giving effect to any materiality or Material Adverse Effect qualifications or exceptions contained therein) in respect of such representations and warranties, taking all the inaccuracies in respect of such representations and warranties together in their entirety, do not result in a Material Adverse Effect on Parent; provided, however, that representations and warranties that expressly speak as of a specified date shall only be true and correct to such extent as of such date.

(iii) The Company shall have received a certificate signed on behalf of Parent and Sub by a duly authorized officer of Parent and Sub to the effect of clauses (i) and (ii) above.”

(e) Section 8.3(a) of the Merger Agreement is hereby amended so that it shall read in its entirety as follows:

“(a) Accuracy of Representations and Warranties.

(i) The representations and warranties of the Company set forth in Sections 4.3 (Capital Structure) and 4.4 (Authority) shall be, to the Knowledge of the Company as of December 14, 2003, true and correct with respect to those matters that are qualified by Material Adverse Effect or materiality and shall be, to the Knowledge of the Company as of December 14, 2003, true and correct in all material respects with respect to those matters that are not so qualified, in each case as of December 14, 2003 as though made on and as of December 14, 2003 (except to the extent any such representation and warranty expressly speaks as of a specified date). The representations and warranties of the Company set forth in this Agreement, other than those listed in the preceding sentence, shall be, to the Knowledge of the Company as of December 14, 2003, true and correct as of December 14, 2003 unless the inaccuracies (without giving effect to any materiality or Material Adverse Effect qualifications or exceptions contained therein) in respect of such representations and warranties, taking all the inaccuracies in respect of all such representations and warranties together in their entirety, do not result in a Material Adverse Effect on the Company; provided, however, that representations and warranties that expressly speak as of a specified date shall only be true and correct to such extent as of such date.

(ii) The representations and warranties of the Company set forth in Section 4.3 (Capital Structure) shall be true and correct with respect to those matters that are qualified by Material Adverse Effect or materiality and shall be true and correct in all material respects with respect to those matters that are not so qualified, in each case as of the Effective Time as though made on and as of the Effective Time (except to the extent any such representation and warranty expressly speaks as of a specified date). The representations and warranties of the Company set forth in Sections 4.6 (SEC Documents and Other Reports) and 4.9 (Compliance with Laws; Permits) shall be true and correct at the Effective Time unless the inaccuracies (without giving effect to any materiality or Material Adverse Effect qualifications or exceptions contained therein) in respect of such representations and warranties, taking all the inaccuracies in respect of such representations and warranties together in their entirety, do not result in a Material Adverse Effect on the Company; provided, however, that representations and warranties that expressly speak as of a specified date shall only be true and correct to such extent as of such date.

(iii) Parent shall have received a certificate signed on behalf of the Company by a duly authorized officer of the Company to the effect of clauses (i) and (ii) above.”

The amendment to the Merger Agreement set forth in this Section 1(e) shall be effective immediately on the date hereof and without the approval of the stockholders of the Company.

(f) Section 8.3(c) of the Merger Agreement is hereby amended so that it shall read in its entirety as follows:

“(c) Avoidance of Bank Holding Company Treatment. Parent shall be reasonably satisfied that neither Parent nor any of its Subsidiaries shall become a bank holding company or financial holding company under the Bank Act on an ongoing basis as a result of the Merger; provided, however, that this condition shall be deemed to be satisfied upon the merger of the Company’s national bank with and into the Company’s interim Colorado industrial loan company.

The amendment to the Merger Agreement set forth in this Section 1(f) shall be effective immediately on the date hereof and without the approval of the stockholders of the Company.

(g) Section 9.1(i) of the Merger Agreement is hereby amended so that it shall read in its entirety as follows:

“(i) by either Parent or the Company, if the Merger shall not have been consummated by the earlier of (i) April 30, 2004 or (ii) three (3) business days after the conclusion of the Second Company Stockholders Meeting (as defined in the Amendment Agreement) and, if held and later, the Second Parent Stockholders Meeting (as defined in the Amendment Agreement) (the earlier of clauses (i) and (ii) being the “Extended End Date”); provided, however, that the right to terminate this Agreement under this Section 9.1(i) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of or resulted in the failure of the Merger to occur on or before the Extended End Date.”

The amendment to the Merger Agreement set forth in this Section 1(g) shall be effective immediately on the date hereof and without the approval of the stockholders of the Company.

(h) Section 6.2(a) of the Merger Agreement is hereby amended by substituting the term “Second Company Stockholders Meeting” for the term “Company Stockholders Meeting” where it appears in the proviso to the first sentence thereof. The amendment to the Merger Agreement set forth in this Section 1(h) shall be effective immediately on the date hereof and without the approval of the stockholders of the Company.

(i) The Merger Agreement is hereby amended by deleting the following Sections in their entirety: Sections 8.1(a), 8.1(e), 8.3(d), and 8.3(e). The foregoing deletions shall be effective immediately on the date hereof and without the approval of the stockholders of the Company.

Section 2. Abeyance. (a) In addition to, and in furtherance of, the amendment to the Merger Agreement provided by Section 1(g) above, each of the parties agrees not to exercise any right to terminate the Merger Agreement pursuant to Section 9.1(i) thereof until the earlier of (i) April 30, 2004 or (ii) three (3) business days after the conclusion of the Second Company Stockholders Meeting (as defined below) and, if held and later, the Second Parent Stockholders Meeting (as defined below).

(b) In addition to, and in furtherance of, the amendment to the Merger Agreement provided by Section 1(d) above, the Company agrees not to exercise any rights with respect to, and to waive any conditions contained in, Section 8.2(a) of the original Merger Agreement if the exercise of any rights with respect to, or the failure to waive any conditions contained in, such Section 8.2(a) would be inconsistent with such Section as amended by the amendment contemplated by Section 1(d) above.

(c) In addition to, and in furtherance of, the amendment to the Merger Agreement provided by Section 1(e) above, Parent and Sub agree not to exercise any rights with respect to, and to waive any conditions contained in, Section 8.3(a) of the original Merger Agreement if the exercise of any rights with respect to, or the failure to waive any conditions contained in, such Section 8.3(a) would be inconsistent with such Section as amended by the amendment contemplated by Section 1(e) above.

Section 3. Further Stockholder Approvals. (a) As soon as practicable following the date hereof, the Company will duly call, give notice of, convene and hold a meeting of its stockholders (including any adjournments or postponements thereof, the “Second Company Stockholders Meeting”). If a meeting of the stockholders of Parent is required by the rules of the NYSE (after consultations by Parent and Company with the NYSE) after the date hereof to approve the issuance of Parent Shares in the Merger, then as soon as practicable following the date hereof, Parent will duly call, give notice of, convene and hold a meeting of its stockholders (including any adjournments or postponements thereof, the “Second Parent Stockholders Meeting” and, together with the Second Company Stockholders Meeting, the “Second Stockholders Meetings”). If the Second Parent Stockholders Meeting is held, then Parent and the Company will use their reasonable best efforts to hold the Second Company Stockholders Meeting and the Second Parent Stockholders Meeting on the same date. The Company shall, through its Board of Directors (but subject to the Board’s fiduciary obligations under applicable law), recommend to its stockholders that they approve the Merger Agreement as amended by Section 1 hereof (the “Amended Merger Agreement”) at the Second Company Stockholders Meeting. If applicable, Parent shall, through its Board of Directors, recommend to its stockholders that the issuance of Parent Shares in the Merger be given at the Second Parent Stockholders Meeting. This Amended Merger Agreement shall be submitted to the Company’s stockholders at the Second Company Stockholders Meeting whether or not the Board of Directors of the Company determines at any time that the Amended Merger Agreement is no longer advisable and recommends that stockholders reject it.

(b) The Company and Parent shall promptly prepare and file with the SEC, as applicable, a proxy statement or joint proxy statement (together with any amendments or supplements thereto, the “Second Proxy Statement”) relating to the Second Company Stockholders Meeting and, if applicable, the Second Parent Stockholders Meeting. As promptly as practicable after the Second Proxy Statement shall have been cleared by the SEC, the Company and, if applicable, Parent shall use reasonable best efforts to distribute the Second Proxy Statement as soon as practicable to their respective stockholders.

(c) No filing of, or amendment or supplement to, the Second Proxy Statement, and no correspondence with the SEC with respect thereto, will be made by the Company or Parent without providing the other party the opportunity to review and comment thereon. If, at any time prior to any of the Second Stockholders Meetings, any information relating to Parent or the Company, or any of their respective Affiliates, officers or directors, should be discovered by Parent or the Company which should be set forth in an amendment or supplement to the Second Proxy Statement, so that such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the stockholders of the Company and Parent.

Section 4. Additional Effect of Termination. In the event that after the date hereof a Takeover Proposal shall have been publicly disclosed or any Person shall have publicly disclosed that, subject to the Merger being disapproved by the Company’s stockholders or otherwise rejected, it will make a Takeover Proposal with respect to the Company and thereafter at the Second Company Stockholders Meeting the stockholders of the Company do not approve the Amended Merger Agreement and the Merger Agreement is terminated pursuant to Section 9.1(i) thereof and concurrently with such termination or within nine months of such termination the Company enters into a definitive agreement with respect to a Takeover Proposal or consummates a Takeover Proposal, then the Company shall, upon the earlier of entering into a definitive agreement with respect to a Takeover Proposal or consummating a Takeover Proposal, pay to Parent, by wire transfer of immediately available funds, the Termination Fee.

Section 5. Additional Provisions. (a) Each of the Company and Parent confirms that as of the date hereof the other party has used (and caused its Subsidiaries to use) reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on its part under the Merger Agreement and Applicable Laws to consummate and make effective the Merger and the other transactions contemplated by the Merger Agreement. Furthermore, the parties waive any claim that any action or the failure to take any action prior to the date hereof by any party constitutes a failure by such party or its Subsidiaries to use reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on its part under the Merger Agreement and Applicable Laws to consummate and make effective the Merger and the other transactions contemplated by the Merger Agreement.

(b) (i) To the Knowledge of the Company as of the date hereof, the representations and warranties of the Company set forth in Sections 4.3 (Capital Structure) and 4.4 (Authority) of the Merger Agreement are, as of the date hereof, true and correct with respect to those matters that are qualified by Material Adverse Effect or materiality and are, as of the date hereof, true and correct in all material respects with respect to those matters that are not so qualified, in each case as of the date hereof as though made on and as of the date hereof (except to the extent any such representation and warranty expressly speaks as of a specified date). To the Knowledge of the Company as of the date hereof, the representations and warranties of the Company set forth in the Merger Agreement, other than those listed in the preceding sentence, are, as of the date hereof, true and correct as of the date hereof unless the inaccuracies (without giving effect to any materiality or Material Adverse Effect qualifications or exceptions contained therein) in respect of such representations and warranties, taking all the inaccuracies in respect of all such representations and warranties together in their entirety, do not result in a Material Adverse Effect on the Company; provided, however, that representations and warranties that expressly speak as of a specified date shall only be true and correct to such extent as of such date.

(ii) To the Knowledge of Parent and Sub, as of the date hereof, the representations and warranties of Parent and Sub set forth in Sections 5.3 (Capital Structure) and 5.4 (Authority) of the Merger Agreement are, as of the date hereof, true and correct with respect to those matters that are qualified by Material Adverse Effect or materiality and are, as of the date hereof, true and correct in all material respects with respect to those matters that are not so qualified, in each case as of the date hereof as though made on and as of the date hereof (except to the extent any such representation and warranty expressly speaks as of a specified date). To the Knowledge of Parent and Sub as of the date hereof, the representations and warranties of Parent and Sub set forth in the Merger Agreement, other than those listed in the preceding sentence, are, as of the date hereof, true and correct as of the date hereof unless the inaccuracies (without giving effect to any materiality or Material Adverse Effect qualifications or exceptions contained therein) in respect of such representations and warranties, taking all the inaccuracies in respect of all such representations and warranties together in their entirety, do not result in a Material Adverse Effect on Parent; provided, however, that representations and warranties that expressly speak as of a specified date shall only be true and correct to such extent as of such date.

(iii) Subject to the accuracy of the Company’s representation contained in Section 5(b)(i) above, Parent and Sub confirm that, as of the date hereof, there has not been (and agree not to assert that there has been as of the date hereof) a Material Adverse Change or Material Adverse Effect with respect to the Company. Parent and Sub further confirm that as of the date hereof they do not have Knowledge of facts and circumstances constituting a breach in any material respect by the Company of any of its covenants contained in the Merger Agreement. Subject to the accuracy of Parent and Sub’s representation contained in Section 5(b)(ii) above, the Company confirms that, as of the date hereof, there has not been (and agrees not to assert that there has been as of the date hereof) a Material Adverse Change or Material Adverse Effect with respect to Parent. The Company further confirms that as of the date hereof it does not have Knowledge of facts and circumstances constituting a breach in any material respect by Parent or Sub of any of their covenants contained in the Merger Agreement.

(c) For the avoidance of doubt, the parties also confirm that if the Board of Directors of the Company shall not have recommended, or the Board of Directors of the Company or any committee thereof shall have modified in any manner adverse to Parent or Sub its recommendation of, the Amended Merger Agreement, that such inaction or action shall give rise to a right of Parent to terminate the Merger Agreement pursuant to Section 9.1(d)(i) thereof.

(d) In connection with Parent and Sub’s due diligence reviews of the Company pursuant to the Merger Agreement after the date hereof, the parties agree that the Company may limit such reviews to determining the accuracy of the representations contained in Sections 4.3, 4.6 and 4.9 and the compliance of the Company with its covenants in the Merger Agreement. In connection with the Company’s due diligence reviews of Parent and Sub pursuant to the Merger Agreement after the date hereof, the parties agree that Parent and Sub may limit such reviews to determining the accuracy of the representations contained in Sections 5.3, 5.6 and 5.9 and the compliance of Parent and Sub with their covenants in the Merger Agreement.

Section 6. Representation and Warranties of the Company. The Company represents and warrants to Parent and Sub as of the date hereof and the Effective Time as follows:

(a) Authority. On or prior to the date of this Amendment Agreement, the Board of Directors of the Company approved this Amendment Agreement, declared the Amended Merger Agreement advisable to the Company and its stockholders, resolved to recommend the approval and adoption of the Amended Merger Agreement by the Company’s stockholders and directed that the Amended Merger Agreement be submitted to the Company’s stockholders for approval and adoption (all in accordance with the DGCL). The Company has all requisite corporate power and authority to execute and deliver this Amendment Agreement. The execution, delivery and performance of this Amendment Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, provided that the effectiveness of Sections 1(a), 1(b) and 1(d) hereof is subject to adoption by the Company’s stockholders of the Amended Merger Agreement. This Amendment Agreement has been duly executed and delivered by the Company and (assuming the valid authorization, execution and delivery of this Amendment Agreement by Parent and Sub) constitutes the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that such enforceability (i) may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting or relating to the enforcement of creditors’ rights generally and (ii) is subject to general principles of equity.

(b) Second Proxy Statement. None of the information supplied or to be supplied by the Company specifically for inclusion or incorporation by reference in the Second Proxy Statement will at the time it is first mailed to the stockholders of the Company or, if applicable, the stockholders of Parent, and at the time of any of the Second Stockholders Meetings, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading or necessary to correct any statement in any earlier communication by the Company with respect to the solicitation of proxies for any of the Second Stockholders Meetings which has become false or misleading. The Second Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act, except that no representation or warranty is made by the Company with respect to statements made or incorporated by reference in the Second Proxy Statement based on information supplied by Parent or Sub or any of their representatives specifically for inclusion or incorporation by reference therein or based on information which is not made in or incorporated by reference in the Second Proxy Statement but which should have been disclosed by Parent.

(c) Required Vote of Company Stockholders. The affirmative vote of the holders of a majority of the outstanding shares of Company Common Stock represented at the Second Company Stockholders Meeting approving the Amended Merger Agreement is the only vote of the holders of any class or series of the Company’s capital stock necessary to approve the Amended Merger Agreement and the transactions contemplated by the Amended Merger Agreement.

(d) Opinions of Financial Advisors. The Company has received the opinions of William Blair & Company, LLC and Goldman Sachs & Co. to the effect that, as of the date thereof, the Exchange Ratio as amended by Section 1(a) hereof is fair to the Company’s holders of the Company Common Stock from a financial point of view.

Section 7. Representation and Warranties of Parent and Sub. Parent and Sub represent and warrant to the Company as of the date hereof and the Effective Time as follows:

(a) Authority. On or prior to the date of this Amendment Agreement, the Boards of Directors of Parent and Sub approved this Amendment Agreement and, subject to the Second Parent Stockholders Meeting being required by the rules of the NYSE (after consultations by Parent and the Company with the NYSE), resolved to recommend the issuance of Parent Shares in the Merger to its stockholders for approval and direct that a proposal to approve the issuance of Parent Shares in the Merger be submitted to its stockholders for approval. Each of Parent and Sub has all requisite corporate power and authority to execute and deliver this Amendment Agreement. The execution, delivery and performance of this Amendment Agreement by each of Parent and Sub have been duly authorized by all necessary corporate action on the part of each of Parent and Sub, subject to approval by Parent’s stockholders of the issuance of Parent Shares in the Merger, if applicable. This Amendment Agreement has been approved by Parent as the sole stockholder of Sub. This Amendment Agreement has been duly executed and delivered by each of Parent and Sub and (assuming the valid authorization, execution and delivery of this Amendment Agreement by the Company) constitutes the valid and binding obligation of each of Parent and Sub enforceable against it in accordance with its terms, except that such enforceability (i) may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting or relating to the enforcement of creditors’ rights generally and (ii) is subject to general principles of equity.

(b) Second Proxy Statement. None of the information supplied or to be supplied by Parent or Sub specifically for inclusion or incorporation by reference in the Second Proxy Statement will at the time it is first mailed to the stockholders of the Company or, if applicable, the stockholders of Parent, or at the time of any of the Second Stockholders Meetings, contain any untrue statement of a material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading or necessary to correct any statement in any earlier communication by Parent or Sub with respect to the solicitation of proxies for any of the Second Stockholders Meetings which has become false or misleading. The Second Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act, except that no representation or warranty is made by Parent or Sub with respect to statements made or incorporated by reference in the Second Proxy Statement based on information supplied by the Company or any of its representatives specifically for inclusion or incorporation by reference therein or based on information which is not made in or incorporated by reference in the Second Proxy Statement but which should have been disclosed by the Company.

(c) Required Vote of Parent Stockholders. Subject to the Second Parent Stockholders Meeting being required by the rules of the NYSE (after consultations by Parent and the Company with the NYSE), the affirmative vote of the holders of a majority of the Parent Shares represented at the Second Parent Stockholders Meeting (provided that at least a majority of the Parent Shares are represented in person or by proxy at such meeting) approving the issuance of Parent Shares in the Merger is the only vote of the holders of any class or series of Parent’s capital stock necessary to approve the Amended Merger Agreement and the transactions contemplated by the Amended Merger Agreement.

(d) Opinions of Financial Advisor. Parent has received the opinions of each of Merrill Lynch & Co. and J.P. Morgan Securities, Inc. to the effect that, as of the date of such opinions, the Exchange Ratio as amended by Section 1(a) hereof is fair to Parent from a financial point of view.

Section 8. General Provisions.

(a) Counterparts. This Amendment Agreement may be executed in counterparts, all of which shall be considered one and the same agreement, it being understood that all parties need not sign the same counterpart.

(b) Governing Law and Venue; Waiver of Jury Trial. (i) THIS AMENDMENT AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF. The parties hereby irrevocably submit to the jurisdiction of the courts of the State of Delaware and the federal courts of the United States of America located in the State of Delaware solely in respect of the interpretation and enforcement of the provisions of this Amendment Agreement, and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Amendment Agreement may not be enforced in or by such courts, and the parties hereto irrevocably agree that all claims with respect to such action or proceeding shall be heard and determined in such a Delaware State or federal court. The parties hereby consent to and grant any such court jurisdiction over the person of such parties and over the subject matter of such dispute and agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 10.2 of the Merger Agreement or in such other manner as may be permitted by law shall be valid and sufficient service thereof.

(ii) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AMENDMENT AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8(b).

(c) For the avoidance of doubt, from and after the date of this Amendment Agreement, references in the Merger Agreement to the “Agreement” or any provision thereof shall be deemed to refer to the Merger Agreement or such provision as amended hereby unless the context otherwise requires, and references in the Merger Agreement to the “date hereof” or the “date of this Agreement” shall be deemed to refer to April 1, 2003. References in this Amendment Agreement to “the date hereof” refer to December 14, 2003.

(d) Except as specifically provided for in this Amendment Agreement, all other provisions of the Merger Agreement shall be in full force and effect.

IN WITNESS WHEREOF, Parent, Sub and the Company have caused this Amendment Agreement to be signed by their respective officers thereunto duly authorized all as of the date first written above.

FIRST DATA CORPORATION
By:	/s/ Charles T. Fote
	Name: Charles T. Fote Title: Chief Executive Officer and Chairman of the Board
MONACO SUBSIDIARY CORPORATION
By:	/s/ Charles T. Fote
	Name: Charles T. Fote Title: Director
CONCORD EFS, INC.
By:	/s/ Dan M. Palmer
	Name: Dan M. Palmer Title: Co-Chief Executive Officer

EX-99.1

Exhibit 99.1

Investor Relations Contacts:
David Banks (First Data) 303-967-8057	Ed Winnick (Concord) 302-791-8484
Media Relations Contacts:
Staci Busby (First Data) 303-967-7188	Melinda Mercurio (Concord) 302-791-8109

First Data and Concord EFS Reach Agreement with Department of Justice

Allowing the Proposed Merger to Proceed;

Companies Agree Concurrently on New Value for the Transaction

First Data Agrees to Divest Interest in NYCE; Terms Call for Reduction in Exchange Ratio

Companies Will Discuss Transaction on 9 a.m. EST Conference Call Today

DENVER and MEMPHIS, Tenn. – December 15, 2003 – First Data Corp. (NYSE: FDC), a national leader in electronic commerce and payment services, and Concord EFS, Inc. (NYSE: CE), a leading electronic transaction processor, today announced a proposed agreement with the U.S. Department of Justice (DOJ), eight states and the District of Columbia on terms that will allow the companies to complete their proposed merger by the end of the first quarter 2004.

In connection with the DOJ settlement, the two companies also agreed to new financial terms, with a new value of approximately $6.9 billion, based on First Data’s closing price on Friday, December 12, 2003, of $39.30. The revised merger agreement also extends the original January 31, 2004 end date to April 30, 2004 to allow sufficient time to obtain the necessary shareholder approvals of the revised terms. The revised agreement increases transaction certainty by eliminating many, but not all, conditions to completing the merger. The boards of both companies have approved the revised agreement.

Upon completion of the transaction, the combined company will provide banks, merchants and their customers with more options to conveniently and securely conduct a full range of electronic payment transactions. The combined company will have approximately $10 billion in annual revenues with more than 31,000 employees worldwide.

The proposed agreement with the DOJ calls for First Data to divest its 64 percent ownership of the NYCE Corporation, an electronic funds transfer network. In addition, First Data has agreed to hold NYCE as a separate unit pending the divestiture.

“We are pleased to move forward with the completion of this transaction,” said First Data Chairman & CEO Charlie Fote. “This combination represents a significant step in developing an open and flexible electronic payments system that will foster competition to the benefit of consumers, merchants and banks. The combined company will provide broad benefits to shareholders.”

“This settlement removes uncertainty and allows the companies to proceed with achieving the benefits of this merger,” Fote added. “We also believe the new financial terms represent a fair value for both sets of shareholders.”

“We are delighted that we have come to an agreement with the Department of Justice and we can move forward with this merger to the benefit of our shareholders, our clients and employees,” said Dick Kiphart, chairman of the board, Concord. “The revised transaction terms increase the likelihood that the merger will be completed. We look forward to joining the First Data family.”

Under terms of the new agreement with Concord, First Data will exchange 0.365 First Data common shares for every Concord common share. At Friday’s (December 12, 2003), closing price of First Data stock, the transaction was valued at $14.34 for each common share of Concord. This exchange ratio represents a reduction from the original exchange ratio of 0.40 shares.

To complete the transaction, First Data will issue approximately 175 million common shares to Concord shareholders. Upon completion of the transaction based on the current shares outstanding, Concord shareholders will own approximately 19 percent of the outstanding shares of the combined First Data/Concord. The exchange of shares in the merger is expected to qualify as a tax-free reorganization, allowing Concord shareholders to defer any gain on their shares for U.S. income tax purposes.

The impact of the transaction in total to First Data’s earnings per share depends on the timing of realizing the anticipated synergies, which is dependent on the closing date of the merger and the timing of the divestiture of NYCE. This could result in a slightly dilutive impact to the company’s 2004 earnings, prior to restructuring and integration charges. It is expected to be accretive thereafter. The company expects to generate cost savings of approximately $205 million in 2006.

The transaction is subject to necessary shareholder approvals. Closing is expected sometime in the first quarter of 2004.

Merrill Lynch and JP Morgan served as financial advisors to First Data, and Sidley Austin Brown & Wood LLP and Bingham McCutchen LLP served as legal advisors. Goldman, Sachs & Co. and William Blair & Co. served as financial advisors to Concord, and Kirkland & Ellis served as legal advisor.

########

CONFERENCE CALL:

First Data and Concord will host a conference call to discuss the transaction today, December 15, at 9 a.m. EST.

To participate in the call, dial 888-831-9087 (U.S. only) or 630-395-0288 (international) ten minutes prior to the start of the call and use passcode FDC.

A replay of the conference call will be available beginning December 16 continuing through 5 p.m. EST December 19 by calling 800-333-1859 (U.S.) or 402-220-0205 (international). No passcode is required.

About First Data

First Data Corp. (NYSE: FDC), with global headquarters in Denver, helps power the global economy. As a leader in electronic commerce and payment services, First Data serves approximately 3 million merchant locations, 1,400 card issuers and millions of consumers, making it easy, fast and secure for people and businesses to buy goods and services using virtually any form of payment. With 29,000 employees worldwide, the company provides credit, debit, smart card and stored-value card issuing and merchant transaction processing services; Internet commerce solutions; money transfer services; money orders; and check processing and verification services throughout the United States. First Data also offers a variety of payment services in the United Kingdom, Australia, Canada, Japan, Mexico, Spain, the Netherlands, the Middle East and Germany. Its Western Union and Orlandi Valuta money transfer networks include a total of approximately 169,000 agent locations in more than 195 countries and territories.

About Concord

Concord EFS, Inc., a vertically integrated electronic transaction processor, provides the technology and network systems that make payments and other financial transactions faster, more efficient, and more secure than paper-based alternatives. Concord acquires, routes, authorizes, captures, and settles virtually all types of electronic payment and deposit access transactions for financial institutions and merchants nationwide. Concord’s primary activities include Network Services, which provides automated teller machine (ATM) processing, debit card processing, deposit risk management, and STARsm network access principally for financial institutions; and Payment Services, which provides point of sale processing, settlement, and related services, with specialized systems focusing on supermarkets, major retailers, gas stations, convenience stores, restaurants, and trucking companies. For more information, visit us at www.concordefs.com.

Not a Proxy Solicitation

This communication is not a solicitation of a proxy from any security holder of First Data Corporation or Concord EFS, Inc. First Data Corporation and Concord EFS, Inc. will be filing an amended proxy statement/prospectus with the Securities and Exchange Commission (SEC) and other relevant documents concerning the planned merger of Concord EFS, Inc. with a subsidiary of First Data Corporation. WE URGE INVESTORS TO READ THE AMENDED PROXY STATEMENT/PROSPECTUS AND ANY OTHER RELEVANT DOCUMENTS TO BE FILED WITH THE SEC, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Investors will be able to obtain the documents free of charge at the SEC’s website, www.sec.gov. In addition, documents filed with the SEC by First Data Corporation will be available free of charge from First Data Investor Relations, 6200 S. Quebec St., Suite 340, Greenwood Village, CO, 80111. Documents filed with the SEC by Concord EFS, Inc. will be available free of charge from Concord Investor Relations, 2525 Horizon Lake Drive, Suite 120, Memphis, TN, 38133.

First Data and Concord, and their respective directors and executive officers and other members of their management and employees, may be deemed to be participants in the solicitation of proxies in connection with the planned merger. Information about the directors and executive officers of First Data and their ownership of First Data stock is set forth in the proxy statement for First Data’s 2003 annual meeting of stockholders. Information about the directors and executive officers of Concord and their ownership of Concord stock is set forth in the proxy statement for Concord’s 2003 annual meeting of stockholders. Investors may obtain additional information regarding the interests of the participants by reading the amended proxy statement/prospectus, when it becomes available.

Notice to Investors, Prospective Investors and the Investment Community

Cautionary Information Regarding Forward-Looking Statements

Statements in this press release regarding the proposed merger of First Data Corporation and Concord EFS, Inc. which are not historical facts, including expectations of financial results for the combined companies (e.g., projections regarding revenue, earnings, cash flow and cost savings), are “forward-looking statements.” All forward-looking statements are inherently uncertain as they are based on various expectations and assumptions concerning future events and they are subject to numerous known and unknown risks and uncertainties, which could cause actual events or results to differ materially from those projected. Investors are cautioned not to place undue reliance on these forward-looking statements and any such forward-looking statements are qualified in their entirety by reference to the following cautionary statements.

Important factors upon which the forward-looking statements presented in this release are premised include: (a) receipt of regulatory and shareholder approvals without unexpected delays or conditions; (b) timely implementation and execution of merger integration plans; (c) the ability to implement comprehensive plans for asset rationalization; (d) the successful integration of the IT systems and elimination of duplicative overhead and IT costs without unexpected costs or delays; (e) retention of customers and critical employees; (f) successfully leveraging First Data/Concord’s comprehensive product offering to the combined customer base; (g) continued growth at rates approximating recent levels for card-based payment transactions and other product markets; (h) no unanticipated changes in laws, regulations, credit card association rules or other industry standards affecting First Data/Concord’s businesses which require significant product redevelopment efforts, reduce the market for or value of its products or render products obsolete; (i) no unanticipated developments relating to previously disclosed lawsuits or similar matters; (j) successful management of any impact from slowing economic conditions or consumer spending; (k) no catastrophic events that could impact First Data/Concord’s or its major customer’s operating facilities, communication systems and technology or that has a material negative impact on current economic conditions or levels of consumer spending; (l) no material breach of security of any First Data/Concord’s systems; and (m) successfully managing the potential both for patent protection and patent liability in the context of rapidly developing legal framework for expansive software patent protection. In addition, the ability of First Data/Concord to achieve the expected revenues, accretion and synergy savings also will be affected by the effects of competition (in particular the response to the proposed transaction in the marketplace), the effects of general economic and other factors beyond the control of First Data/Concord, and other risks and uncertainties described from time to time in First Data/Concord’s public filings with United States Securities and Exchange Commission.

EX-99.2

Exhibit 99.2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, et al., Plaintiffs, v. FIRST DATA CORPORATION, and CONCORD EFS, INC., Defendants. CASE NUMBER: 1:03CV02169 (RMC)

HOLD SEPARATE STIPULATION AND ORDER

I. Definitions

As used in this Hold Separate Stipulation and Order:

A. “Acquirer” means the entity or entities to whom defendant First Data divests NYCE Holdings.

B. “Concord” means Concord EFS, Inc., a Delaware corporation headquartered in Memphis, Tennessee, and its successors and assigns, its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.

C. “EFT network services” means the provision to financial institutions and retailers of shared electronic fund transfer network services for automatic teller machine (ATM) transactions, online and offline debit point-of-sale (POS) transactions, electronic benefits transfer, and point-of-banking transactions.

D. “EFT processing services” means the provision to financial institutions of real-time processing services that support ATM driving and fully-automated monitoring services, gateway access, and debit card issuance and authorization solutions.

E. “First Data” means First Data Corporation, a Delaware corporation headquartered in Greenwood Village, Colorado, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures (excluding those entities not controlled by First Data), and their directors, officers, managers, agents, and employees.

F. “NYCE” means NYCE Corporation, a Delaware corporation headquartered in Montvale, New Jersey, and its successors and assigns, its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures (excluding those entities not controlled by NYCE), and their directors, officers, managers, agents, and employees. NYCE includes its EFT network services business (the NYCE Network) and its EFT processing services business.

G. “NYCE Holdings” means, unless otherwise noted, all of First Data’s governance rights in NYCE, and First Data’s entire 64 percent ownership interest in NYCE, including all of NYCE’s rights, titles, and interests in the following:

1. all tangible assets of NYCE, including facilities and real property; data centers; assets used for research, development, engineering or other support to NYCE, and any real property associated with those assets; manufacturing and sales assets relating to NYCE, including capital equipment, vehicles, supplies, personal property, inventory, office furniture, fixed assets and fixtures, materials, on- or off-site warehouses or storage facilities, and other tangible property or improvements; all licenses, permits and authorizations issued by any governmental organization relating to NYCE; all contracts, joint ventures, agreements, leases, commitments, and understandings pertaining to the operations of NYCE; supply agreements; all customer lists, accounts, and credit records; and other records maintained by NYCE in connection with its operations; and

2. the intangible assets of NYCE, including all patents, licenses and sublicenses, intellectual property, copyrights, trademarks, computer software and related documentation, trade names, service marks, “bugs,” service names, technical information, know-how, trade secrets, drawings, blueprints, designs, design protocols, specifications for materials, specifications for parts and devices, data and results concerning historical and current research and development, quality assurance and control procedures, design tools and simulation capability, and all manuals and technical information NYCE provides to its employees, customers, suppliers, agents or licensees in connection with NYCE’s operations.

H. “Online debit” means PIN debit.

I. “PIN” means a Personal Identification Number.

J. “PIN debit” means a method of electronic card payment by which consumers purchase goods and services from merchants by swiping a bank card at a point-of-sale terminal and entering a PIN on a numeric keypad, upon which the purchase amount is debited from the customer’s bank account and transferred to the retailer’s bank.

K. “PIN debit network” means a telecommunications and payment infrastructure that enables PIN debit transactions by providing the switch that connects merchants to consumers’ demand deposit accounts at banks.

L. “PIN debit network services” means the PIN debit network and its performance of those related functions necessary for the efficient operation of the network, including promotion of brand names among consumers, merchants, and banks; establishment of rules and standards to govern the networks; and the setting of fees.

M. “Plaintiff states” means the District of Columbia and the States of Connecticut, Illinois, Louisiana, Massachusetts, New York, Ohio, Pennsylvania, and Texas.

II. Objectives

The Final Judgment filed in this case is meant to ensure the prompt divestiture by First Data of NYCE Holdings for the purpose of ensuring the establishment of a viable competitor capable of competing effectively to provide EFT network services, including PIN debit network services, and EFT processing services in the United States and to remedy the anticompetitive effects that the United States and plaintiff states allege would otherwise result from defendant First Data’s acquisition of defendant Concord. This Hold Separate Stipulation and Order ensures that, prior to such divestiture, NYCE is operated as a competitively independent, economically viable, and ongoing business concern, that will remain independent and uninfluenced by the consummation of that acquisition, and that competition is maintained during the pendency of the ordered divestiture.

III. Jurisdiction and Venue

This Court has jurisdiction over the subject matter of this action and over each of the parties hereto, and venue of this action is proper in the United States District Court for the District of Columbia.

IV. Compliance With and Entry of Final Judgment

A. The parties stipulate that a Final Judgment in the form attached hereto as Exhibit A may be filed with and entered by the Court, upon the motion of any party or upon the Court’s own motion, at any time after compliance with the requirements of the Antitrust Procedures and Penalties Act (15 U.S.C. 16), and without further notice to any party or other proceedings, provided that the United States has not withdrawn its consent, which it may do at any time before the entry of the proposed Final Judgment by serving notice thereof on defendants and by filing that notice with the Court.

B. Defendants shall abide by and comply with the provisions of the proposed Final Judgment, pending entry of the Final Judgment by the Court, or until expiration of time for all appeals of any Court ruling denying entry of the proposed Final Judgment, and shall, from the date defendants signed this Stipulation, comply with all the terms and provisions of the proposed Final Judgment as though the same were in full force and effect as an order of the Court.

C. Defendants shall not consummate the transaction sought to be enjoined by the Complaint herein before the Court has signed this Hold Separate Stipulation and Order.

D. This Stipulation shall apply with equal force and effect to any amended proposed Final Judgment agreed upon in writing by the parties and submitted to the Court.

E. In the event (1) the United States has withdrawn its consent, as provided in Section IV.A. above, (2) First Data notifies the Court that the proposed acquisition of Concord has been abandoned and will not be consummated, or (3) the proposed Final Judgment is not entered pursuant to this Stipulation, the time has expired for all appeals of any Court ruling denying the proposed Final Judgment, and the Court has not otherwise ordered continued compliance with the terms and provisions of the proposed Final Judgment, then the parties are released from all further obligations under this Stipulation, and the making of this Stipulation shall be without prejudice to any party in this or any other proceeding.

F. Defendants represent that the divestiture ordered in the proposed Final Judgment can and will be made, and that they later will raise no claim of mistake, hardship, or difficulty of compliance as grounds for asking the Court to modify any of the provisions contained therein.

V. NYCE Governance

During the period in which this Hold Separate Stipulation and Order are in effect, First Data is enjoined and restrained, directly or indirectly from:

1. suggesting or nominating, individually or as part of a group, any candidate who is not an officer or manager of NYCE or minority shareholder of NYCE for election to NYCE’s Board of Directors, or, after fifteen (15) calendar days after the signing by the Court of this Hold Separate Stipulation and Order, having any officer, director, manager, employee, or agent serve as an officer, director, manager, employee, or in a comparable position with or for NYCE;

2. participating in, being present at, or receiving any notes, minutes, or agendas of, information from, or any documents distributed in connection with, any nonpublic meeting of NYCE’s Board of Directors or any committee thereof, or any other governing body of NYCE, except as necessary to carry out First Data’s obligations under this Hold Separate Stipulation and Order. For purposes of this provision, the term “meeting“ includes any action taken by consent of the relevant directors in lieu of a meeting;

3. voting or permitting to be voted any NYCE shares that First Data owns or using or attempting to use any ownership interest in NYCE to exert any influence over NYCE, except as necessary to carry out First Data’s obligations under this Hold Separate Stipulation and Order; and

4. communicating to or receiving from any officer, director, manager, employee, or agent of NYCE any nonpublic information regarding any aspect of NYCE’s business, including any plans or proposals with respect thereto, except in the ordinary course of business or as required by applicable law.

VI. Hold Separate Provisions

Until the divestiture required by the Final Judgment has been accomplished, subject to the provisions of Section V and consistent with past practice:

A.     First Data shall preserve and maintain NYCE as a separate, independent, ongoing, economically viable competitive business, with NYCE’s management, sales, and operations held entirely separate, distinct, and apart from First Data’s other operations. Within twenty (20) days after the entry of this Hold Separate Stipulation and Order, First Data shall inform the United States and plaintiff states of the steps First Data has taken to comply with this Hold Separate Stipulation and Order.

B. First Data shall take all steps necessary to ensure that (1) NYCE is maintained and operated as a separate, independent, ongoing, economically viable, and active competitor in the provision of EFT network services, including PIN debit network services, and EFT processing services, and (2) the books, records, competitively sensitive sales, marketing and pricing information, and decision-making concerning NYCE will be kept separate, distinct, and apart from First Data’s other operations. First Data’s influence over NYCE shall be limited to that necessary to carry out First Data’s obligations under this Hold Separate Stipulation and Order or as required by applicable law. First Data shall not hire any officer or employee of NYCE and shall not seek the termination or transfer of any NYCE officer or employee, or alter, to the detriment of such officer or employee, such person’s salary or benefits.

C. First Data shall continue to honor and comply fully with all contractual obligations, understandings, and formal or informal agreements (collectively “Agreements”) that First Data has with NYCE.

D. To the extent that First Data sells, leases, rents, or otherwise provides, any product or service to NYCE, whether pursuant to contract or any Agreement or practice, First Data shall continue to sell, lease, rent, or provide such products or services in the ordinary course of business, and in a manner consistent with First Data’s plans, strategies, polices and practices, and under the same terms and conditions, in existence as of the date First Data signs this Hold Separate Stipulation and Order.

E. To the extent that First Data purchases, leases, rents, or otherwise obtains, any product or service from NYCE, whether pursuant to any Agreement or practice, First Data shall continue to purchase, lease, rent, or provide such products or services in the ordinary course of business, and in a manner consistent with First Data’s plans, strategies, polices and practices, and under the same terms and conditions, in existence as of the date First Data signs this Hold Separate Stipulation and Order.

F. First Data shall not take any action, or permit, authorize, allow or encourage any inaction, which discriminates against NYCE, including, but not limited to, using its merchant processing, merchant acquiring, card issuing or card processing services to reduce the volume or diminish the volume growth of ATM or PIN debit transactions switched by NYCE or degrade, impede or reduce the performance of any aspect of NYCE platforms or data centers.

G. First Data shall use reasonable efforts to maintain and increase sales and revenues of NYCE and shall maintain at 2003 levels or previously approved levels for 2004, whichever are higher, all promotional, advertising, sales, technical assistance, marketing, and merchandising support for NYCE.

H. First Data shall provide sufficient working capital and lines and sources of credit, at 2003 levels or previously approved levels for 2004, whichever are higher, to continue to maintain NYCE as an ongoing, economically viable, and competitive business.

I. First Data shall take all steps necessary to ensure that NYCE is fully maintained in operable condition at no less than the previously projected 2004 capacity and sales that existed as of the date First Data signs this Hold Separate Stipulation and Order, and shall maintain and adhere to normal repair and maintenance schedules for NYCE.

J. First Data shall not, except as part of a divestiture approved by the United States in accordance with the terms of the proposed Final Judgment, remove, sell, lease, assign, transfer, pledge, or otherwise dispose of any assets, rights, or interests of NYCE Holdings or NYCE, provided, however, that nothing in this Section VI.J. shall prohibit NYCE from doing so in the ordinary course of business.

K. First Data shall maintain, in accordance with sound accounting principles, separate, accurate, and complete financial ledgers, books and records that report on a periodic basis, such as the last business day of every month, consistent with past practices, the assets, liabilities, expenses, revenues and income of NYCE.

L. Defendants shall take no action that would jeopardize, delay, or impede the sale of NYCE Holdings.

M. This Hold Separate Stipulation and Order shall remain in effect until consummation of the divestiture required by the proposed Final Judgment or until further order of the Court.

FOR PLAINTIFF UNITED STATES: FOR PLAINTIFF STATES:

/s/ Craig W. Conrath Craig W. Conrath, Esq. Antitrust Division U.S. Department of Justice 600 E Street, N.W., Suite 9500 Washington, D.C. 20530	/s/ Rebecca Fisher Rebecca Fisher, Esq. Assistant Attorney General P.O. Box 12548 Austin, TX 78711-2548
FOR DEFENDANT FIRST DATA CORPORATION:	FOR DEFENDANT CONCORD EFS, INC.:
/s/ Lawrence R. Fullerton Lawrence R. Fullerton DC Bar No. 251264 SIDLEY AUSTIN BROWN & WOOD LLP 1501 K Street, N.W. Washington, D.C. 20005 William O. Fifield SIDLEY AUSTIN BROWN & WOOD LLP 717 North Harwood, Suite 3400 Dallas Texas, 75201	/s/ James H. Mutchnik Stephen R. Patton James H. Mutchnik KIRKLAND & ELLIS, LLP 200 E. Randolph Drive Chicago, IL 60601 Mark L. Kovner DC Bar No. 430431 KIRKLAND & ELLIS, LLP 655 Fifteenth Street, N.W. Washington, D.C. 20005

Date: December 14, 2003

ORDER

IT IS SO ORDERED ON THIS              DAY OF                         , 2003.

United States District Judge

EXHIBIT A

PROPOSED FINAL JUDGMENT

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, et al., Plaintiffs, v. FIRST DATA CORPORATION, and CONCORD EFS, INC., Defendants. CASE NUMBER: 1:03CV02169 (RMC)

FINAL JUDGMENT

WHEREAS, plaintiff United States of America (“United States”), the District of Columbia, and the States of Connecticut, Illinois, Louisiana, Massachusetts, New York, Ohio, Pennsylvania, and Texas (“plaintiff states”), filed their Complaint on October 23, 2003, and the United States, plaintiff states, and defendants, First Data Corporation and Concord EFS, Inc., by their respective attorneys, have consented to the entry of this Final Judgment without trial;

AND WHEREAS, this Final Judgment does not constitute any evidence against or admission by any party regarding any issue of fact or law;

AND WHEREAS, defendants agree to be bound by the provisions of this Final Judgment pending its approval by the Court;

AND WHEREAS, the essence of this Final Judgment is the prompt and certain divestiture of certain rights or assets by First Data to assure that competition is not substantially lessened;

AND WHEREAS, the United States and plaintiff states require First Data to make a certain divestiture for the purpose of remedying the loss of competition alleged in the Complaint;

AND WHEREAS, defendants have represented to the United States and plaintiff states that the divestiture required below can and will be made and that defendants will later raise no claim of hardship or difficulty as grounds for asking the Court to modify any of the divestiture provisions contained below;

NOW THEREFORE, without trial and upon consent of the parties, it is ORDERED, ADJUDGED AND DECREED:

I. Jurisdiction

This Court has jurisdiction over the subject matter of and each of the parties to this action. The Complaint states a claim upon which relief may be granted against defendants under Section 7 of the Clayton Act, as amended, 15 U.S.C. § 18.

II. Definitions

As used in this Final Judgment:

A. “Acquirer” means the entity or entities to whom defendant First Data divests NYCE Holdings.

B. “Concord” means Concord EFS, Inc., a Delaware corporation headquartered in Memphis, Tennessee, and its successors and assigns, its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.

C. “EFT network services” means the provision to financial institutions and retailers of shared electronic fund transfer network services for automatic teller machine (ATM) transactions, online and offline debit point-of-sale (POS) transactions, electronic benefits transfer, and point-of-banking transactions.

D. “EFT processing services” means the provision to financial institutions of real-time processing services that support ATM driving and fully-automated monitoring services, gateway access, and debit card issuance and authorization solutions.

E. “First Data” means First Data Corporation, a Delaware corporation headquartered in Greenwood Village, Colorado, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures (excluding those entities not controlled by First Data), and their directors, officers, managers, agents, and employees.

F. “NYCE” means NYCE Corporation, a Delaware corporation headquartered in Montvale, New Jersey, and its successors and assigns, its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures (excluding those entities not controlled by NYCE), and their directors, officers, managers, agents, and employees. NYCE includes its EFT network services business (the NYCE Network) and its EFT processing services business.

G. “NYCE Holdings” means, unless otherwise noted, all of First Data’s governance rights in NYCE, and First Data’s entire 64 percent ownership interest in NYCE, including all of NYCE’s rights, titles, and interests in the following:

1. all tangible assets of NYCE, including facilities and real property; data centers; assets used for research, development, engineering or other support to NYCE, and any real property associated with those assets; manufacturing and sales assets relating to NYCE, including capital equipment, vehicles, supplies, personal property, inventory, office furniture, fixed assets and fixtures, materials, on- or off-site warehouses or storage facilities, and other tangible property or improvements; all licenses, permits and authorizations issued by any governmental organization relating to NYCE; all contracts, joint ventures, agreements, leases, commitments, and understandings pertaining to the operations of NYCE; supply agreements; all customer lists, accounts, and credit records; and other records maintained by NYCE in connection with its operations; and

2. the intangible assets of NYCE, including all patents, licenses and sublicenses, intellectual property, copyrights, trademarks, computer software and related documentation, trade names, service marks, “bugs,” service names, technical information, know-how, trade secrets, drawings, blueprints, designs, design protocols, specifications for materials, specifications for parts and devices, data and results concerning historical and current research and development, quality assurance and control procedures, design tools and simulation capability, and all manuals and technical information NYCE provides to its employees, customers, suppliers, agents or licensees in connection with NYCE’s operations.

H. “Online debit” means PIN debit.

I. “PIN” means a Personal Identification Number.

J. “PIN debit” means a method of electronic card payment by which consumers purchase goods and services from merchants by swiping a bank card at a point-of-sale terminal and entering a PIN on a numeric keypad, upon which the purchase amount is debited from the customer’s bank account and transferred to the retailer’s bank.

K. “PIN debit network” means a telecommunications and payment infrastructure that enables PIN debit transactions by providing the switch that connects merchants to consumer’s demand deposit accounts at banks.

L. “PIN debit network services” means the PIN debit network and its performance of those related functions necessary for the efficient operation of the network, including promotion of brand names among consumers, merchants, and banks; establishment of rules and standards to govern the networks; and the setting of fees.

III. Applicability

A. This Final Judgment applies to First Data and Concord, as defined above, and all other persons in active concert or participation with any of them who receive actual notice of this Final Judgment by personal service or otherwise.

B. Defendants shall require, as a condition of the sale or other disposition of all or substantially all of their assets or of lesser business units that include NYCE, that the purchaser agrees to be bound by the provisions of this Final Judgment.

IV. Divestiture

A. Defendant First Data is ordered and directed, within one hundred fifty (150) calendar days after the Court’s signing of the Hold Separate Stipulation and Order in this matter, or five (5) days after notice of the entry of this Final Judgment by the Court, whichever is later, to divest NYCE Holdings in a manner consistent with this Final Judgment to an Acquirer acceptable to the United States in its sole discretion, after consultation with plaintiff states. The United States, in its sole discretion, after consultation with plaintiff states, may agree to one or more extensions of this time period, not to exceed in total ninety (90) calendar days, and shall notify the Court in each such circumstance. Defendant First Data agrees to use its best efforts to divest NYCE Holdings as expeditiously as possible.

B. In accomplishing the divestiture ordered by this Final Judgment, defendant First Data promptly shall make known, by usual and customary means, the availability of NYCE Holdings. Defendants shall inform any person making inquiry regarding a possible purchase of NYCE Holdings that it will be divested pursuant to this Final Judgment and provide that person with a copy of this Final Judgment. Defendant First Data shall offer to furnish to all prospective Acquirers, subject to customary confidentiality assurances, all information and documents relating to NYCE customarily provided in a due diligence process except such information or documents subject to the attorney-client or work-product privilege. Defendant First Data shall make available such information to the United States and plaintiff states at the same time that such information is made available to any other person.

C. Defendant First Data shall provide prospective Acquirers of NYCE Holdings, the United States, and plaintiff states information relating to the personnel involved in the production, operation, research, development, and sales at NYCE to enable the Acquirer to make offers of employment. Defendants will not interfere with any negotiations by the Acquirer to employ any of NYCE’s employees whose responsibilities includes the production, operation, development, or sale of the products and services of NYCE.

D. Defendant First Data shall permit prospective Acquirers of NYCE Holdings to have reasonable access to personnel and to make inspections of the physical facilities of NYCE; access to any and all environmental, zoning, and other permit documents and information; and access to any and all financial, operational, or other documents and information customarily provided as part of a due diligence process.

E. Defendant First Data shall warrant to the Acquirer of NYCE Holdings that each asset therein that was operational as of the date of filing of the Complaint in this matter will be operational on the date of divestiture.

F. Defendants shall not take any action that will impede in any way the permitting, operation, or divestiture of NYCE or NYCE Holdings.

G. Defendant First Data shall warrant to the Acquirer of NYCE Holdings that there are no material defects in the environmental, zoning, or other permits pertaining to the operation of NYCE, and following the sale of NYCE Holdings, defendants shall not undertake, directly or indirectly, any challenges to the environmental, zoning, or other permits relating to the operation of NYCE.

H. Unless the United States otherwise consents in writing, after consultation with plaintiff states, the divestiture pursuant to Section IV, or by trustee appointed pursuant to Section V, of this Final Judgment, shall include the entire NYCE Holdings as defined in Section II(G) and shall be accomplished in such a way as to satisfy the United States, in its sole discretion, after consultation with plaintiff states, that NYCE can and will be used by the Acquirer as part of a viable, ongoing business engaged in the provision of EFT network services, including PIN debit network services, and EFT processing services. Divestiture of NYCE Holdings may be made to an Acquirer, provided that it is demonstrated to the sole satisfaction of the United States, in its sole judgment, after consultation with plaintiff states, that the divested asset will remain viable and that the divestiture will remedy the competitive harm alleged in the Complaint. The divestiture, whether pursuant to Section IV or Section V of this Final Judgment,

1. Shall be made to an Acquirer that, in the United States’ sole judgment, after consultation with plaintiff states, has the intent and capability (including the necessary managerial, operational, technical, and financial capability) to compete effectively in the provision of EFT network services, including PIN debit network services, and EFT processing services in the United States; and

2. Shall be accomplished so as to satisfy the United States, in its sole discretion, after consultation with plaintiff states, that none of the terms of any agreement between an Acquirer and defendants give defendants the ability unreasonably to raise NYCE’s costs, to lower NYCE’s efficiency, or otherwise to interfere in the ability of NYCE to compete effectively.

V. Appointment of Trustee to Effect Divestiture

A. If defendant First Data has not divested NYCE Holdings within the time period specified in Section IV(A), it shall notify the United States and plaintiff states of that fact in writing. Upon application of the United States, in its sole discretion, after consultation with plaintiff states, the Court shall appoint a trustee selected by the United States, and approved by the Court to effect the divestiture of NYCE Holdings.

B. After the appointment of a trustee becomes effective, only the trustee shall have the right to sell NYCE Holdings. The trustee shall have the power and authority to accomplish the divestiture of NYCE Holdings to an Acquirer acceptable to the United States, in its sole judgment after consultation with plaintiff states, at such price and on such terms as are then obtainable upon reasonable effort by the trustee, subject to the provisions of Sections IV, V, and VI of this Final Judgment, and shall have such other powers as this Court deems appropriate. Subject to Section V(D) of this Final Judgment, the trustee may hire at the cost and expense of defendant First Data any investment bankers, attorneys, or other agents, who shall be solely accountable to the trustee, reasonably necessary in the trustee’s judgment to assist in the divestiture.

C. Defendants shall not object to a sale by the trustee on any ground other than the trustee’s malfeasance. Any such objections by defendants must be conveyed in writing to the United States, plaintiff states, and the trustee within ten (10) calendar days after the trustee has provided the notice required under Section VI.

D. The trustee shall serve at the cost and expense of defendant First Data, on such terms and conditions as the United States approves, and shall account for all monies derived from the sale of NYCE Holdings and all costs and expenses so incurred. After approval by the Court of the trustee’s accounting, including fees for its services and those of any professionals and agents retained by the trustee, all remaining money shall be paid to defendant First Data and the trust shall then be terminated. The compensation of the trustee and any professionals and agents retained by the trustee shall be reasonable in light of the value of the asset to be divested and based on a fee arrangement providing the trustee with an incentive based on the price and terms of the divestiture and the speed with which it is accomplished, but timeliness is paramount.

E. Defendants shall use their best efforts to assist the trustee in accomplishing the required divestiture. The trustee and any consultants, accountants, attorneys, and other persons retained by the trustee shall have full and complete access to the personnel, books, records, and facilities of the business to be divested, and defendants shall develop financial and other information relevant to such business as the trustee may reasonably request, subject to customary confidentiality protection for trade secret or other confidential research, development, or commercial information. Defendants shall take no action to interfere with or to impede the trustee’s accomplishment of the divestiture.

F. After its appointment, the trustee shall file monthly reports with the United States, plaintiff states, and the Court setting forth the trustee’s efforts to accomplish the divestiture ordered under this Final Judgment. To the extent such reports contain information that the trustee deems confidential, such reports shall not be filed in the public docket of the Court. Such reports shall include the name, address, and telephone number of each person who, during the preceding month, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, NYCE Holdings and shall describe in detail each contact with any such person. The trustee shall maintain full records of all efforts made to divest NYCE Holdings.

G. If the trustee has not accomplished such divestiture within six months after its appointment, the trustee shall promptly file with the Court a report setting forth (1) the trustee’s efforts to accomplish the required divestiture; (2) the reasons, in the trustee’s judgment, why the required divestiture has not been accomplished; and (3) the trustee’s recommendations. To the extent such reports contain information that the trustee deems confidential, such reports shall not be filed in the public docket of the Court. The trustee shall at the same time furnish such report to the United States and plaintiff states, and the United States and plaintiff states shall have the right to make additional recommendations consistent with the purpose of the trust. The Court thereafter shall enter such orders as it shall deem appropriate to carry out the purpose of the Final Judgment, which may, if necessary, include extending the trust and the term of the trustee’s appointment by a period requested by the United States.

VI. Notice of Proposed Divestiture

A. Within two (2) business days following execution of a definitive divestiture agreement, defendant First Data or the trustee, whichever is then responsible for effecting the divestiture required herein, shall notify the United States and plaintiff states of any proposed divestiture required by Section IV or V of this Final Judgment. If the trustee is responsible, it shall similarly notify defendants. The notice shall set forth the details of the proposed divestiture and list the name, address, and telephone number of each person not previously identified who offered or expressed an interest in or desire to acquire any ownership interest in NYCE Holdings, together with full details of the same.

B. Within fifteen (15) calendar days of receipt by the United States and plaintiff states of such notice, the United States and plaintiff states may request from defendants, the proposed Acquirer, any other third party, or the trustee if applicable, additional information concerning the proposed divestiture, the proposed Acquirer, and any other potential Acquirer. Defendants and the trustee shall furnish any additional information requested within fifteen (15) calendar days of the receipt of the request, unless the parties shall otherwise agree.

C. Within thirty (30) calendar days after receipt of the notice or within twenty (20) calendar days after the United States and plaintiff states have been provided the additional information requested from defendants, the proposed Acquirer, any third party, and the trustee, whichever is later, the United States, in its sole discretion, after consultation with plaintiff states, shall provide written notice to defendants and the trustee, if there is one, stating whether or not it objects to the proposed divestiture. If the United States provides written notice that it does not object, the divestiture may be consummated, subject only to defendants’ limited right to object to the sale under Section V(C) of this Final Judgment. Absent written notice that the United States does not object to the proposed Acquirer or upon objection by the United States, a divestiture proposed under Section IV or Section V shall not be consummated. Upon objection by defendants under Section V(C), a divestiture proposed under Section V shall not be consummated unless approved by the Court.

VII. Financing

Defendants shall not finance all or any part of any purchase made pursuant to Section IV or V of this Final Judgment.

VIII. Hold Separate

Until the divestiture required by this Final Judgment has been accomplished, defendants shall take all steps necessary to comply with the Hold Separate Stipulation and Order entered by this Court. Defendants shall take no action that would jeopardize the divestiture ordered by this Court.

IX. Affidavits

A. Within twenty (20) calendar days of the Court’s signing of the Hold Separate Stipulation and Order in this matter, and every thirty (30) calendar days thereafter until the divestiture has been completed under Section IV or V, defendants shall deliver to the United States and plaintiff states an affidavit as to the fact and manner of their compliance with Section IV or V of this Final Judgment. Each such affidavit shall include the name, address, and telephone number of each person who, during the preceding thirty days, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in NYCE Holdings and shall describe in detail each contact with any such person during that period. Each such affidavit shall also include a description of the efforts defendants have taken to solicit buyers for the asset to be divested, and to provide required information to any prospective Acquirer, including the limitations, if any, on such information. Assuming the information set forth in the affidavit is true and complete, any objection by the United States, in its sole discretion, after consultation with plaintiff states, to information provided by defendants, including limitations on the information, shall be made within fourteen (14) calendar days of receipt of such affidavit.

B. Within twenty (20) calendar days of the Court’s signing of the Hold Separate Stipulation and Order in this matter, defendants shall deliver to the United States and plaintiff states an affidavit that describes in reasonable detail all actions defendants have taken and all steps defendants have implemented on an ongoing basis to comply with Section VIII of this Final Judgment. Defendants shall deliver to the United States and plaintiff states an affidavit describing any changes to the efforts and actions outlined in defendants’ earlier affidavits filed pursuant to this section within fifteen (15) calendar days after the change is implemented.

C. Defendants shall keep all records of all efforts made to preserve and divest NYCE Holdings until one year after such divestiture has been completed.

X. Compliance Inspection

A. For purposes of determining or securing compliance with this Final Judgment, or of determining whether the Final Judgment should be modified or vacated, and subject to any legally recognized privilege, from time to time duly authorized representatives of the United States, including consultants and other persons retained by the United States, shall, upon written request of a duly authorized representative of the Assistant Attorney General in charge of the Antitrust Division, and on reasonable notice to defendants, be permitted:

1. access during defendants’ office hours to inspect and copy, or at plaintiff’s option, to require defendants to provide copies of, all books, ledgers, accounts, records and documents in the possession, custody, or control of defendants, relating to any matters contained in this Final Judgment; and

2. to interview, either informally or on the record, defendants’ officers, employees, or agents, who may have their individual counsel present, regarding such matters. The interviews shall be subject to the reasonable convenience of the interviewee and without restraint or interference by defendants.

B. Upon the written request of a duly authorized representative of the Assistant Attorney General in charge of the Antitrust Division, defendants shall submit written reports, under oath if requested, relating to any of the matters contained in this Final Judgment as may be requested.

C. No information or documents obtained by the means provided in this section shall be divulged by the United States to any person other than an authorized representative of the executive branch of the United States, except in the course of legal proceedings to which the United States is a party (including grand jury proceedings), or for the purpose of securing compliance with this Final Judgment, or as otherwise required by law.

D. If at the time information or documents are furnished by defendants to the United States, defendants represent and identify in writing the material in any such information or documents to which a claim of protection may be asserted under Rule 26(c)(7) of the Federal Rules of Civil Procedure, and defendants mark each pertinent page of such material, “Subject to claim of protection under Rule 26(c)(7) of the Federal Rules of Civil Procedure,” then the United States shall give defendants ten (10) calendar days notice prior to divulging such material in any legal proceeding (other than a grand jury proceeding).

XI. No Reacquisition

Defendants may not reacquire any ownership interest in NYCE during the term of this Final Judgment.

XII. Retention of Jurisdiction

This Court retains jurisdiction to enable any party to this Final Judgment to apply to this Court at any time for further orders and directions as may be necessary or appropriate to carry out or construe this Final Judgment, to modify any of its provisions, to enforce compliance, and to punish violations of its provisions.

XIII. Expiration of Final Judgment

Unless this Court grants an extension, this Final Judgment shall expire ten years from the date of its entry.

XIV. Public Interest Determination

Entry of this Final Judgment is in the public interest.

Date: _______________________

Court approval subject to procedures of the Antitrust Procedures and Penalties Act, 15 U.S.C. § 16.

_________________________________________________

United States District Judge