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 <P STYLE="line-height:1.0pt;margin-top:0pt;margin-bottom:0pt;border-bottom:1px solid #000000">&nbsp;</P>
<P STYLE="line-height:3.0pt;margin-top:0pt;margin-bottom:2pt;border-bottom:1px solid #000000">&nbsp;</P> <P STYLE="margin-top:4pt; margin-bottom:0pt; font-size:18pt; font-family:Times New Roman" ALIGN="center"><B>UNITED STATES </B></P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:18pt; font-family:Times New Roman" ALIGN="center"><B>SECURITIES AND EXCHANGE COMMISSION </B></P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:12pt; font-family:Times New Roman" ALIGN="center"><B>Washington, D.C. 20549 </B></P> <P STYLE="font-size:6pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P><center>
<P STYLE="line-height:6.0pt;margin-top:0pt;margin-bottom:2pt;border-bottom:1.00pt solid #000000;width:21%">&nbsp;</P></center> <P STYLE="margin-top:12pt; margin-bottom:0pt; font-size:18pt; font-family:Times New Roman" ALIGN="center"><B>FORM <FONT
STYLE="white-space:nowrap">8-K</FONT> </B></P> <P STYLE="font-size:6pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P><center>
<P STYLE="line-height:6.0pt;margin-top:0pt;margin-bottom:2pt;border-bottom:1.00pt solid #000000;width:21%">&nbsp;</P></center> <P STYLE="margin-top:12pt; margin-bottom:0pt; font-size:12pt; font-family:Times New Roman" ALIGN="center"><B>CURRENT
REPORT </B></P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:12pt; font-family:Times New Roman" ALIGN="center"><B>Pursuant to Section&nbsp;13 or 15(d) of the </B></P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:12pt; font-family:Times New Roman" ALIGN="center"><B>Securities Exchange Act of 1934 </B></P>
<P STYLE="margin-top:12pt; margin-bottom:0pt; font-size:12pt; font-family:Times New Roman" ALIGN="center"><B>Date of Report (Date of earliest event reported): January&nbsp;17, 2019 </B></P>
<P STYLE="font-size:6pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P><center> <P STYLE="line-height:6.0pt;margin-top:0pt;margin-bottom:2pt;border-bottom:1.00pt solid #000000;width:21%">&nbsp;</P></center>
<P STYLE="margin-top:12pt; margin-bottom:0pt; font-size:24pt; font-family:Times New Roman" ALIGN="center"><B>First Data Corporation </B></P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center"><B>(Exact Name of Registrant as Specified in Charter) </B></P> <P STYLE="font-size:6pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P><center>
<P STYLE="line-height:6.0pt;margin-top:0pt;margin-bottom:2pt;border-bottom:1.00pt solid #000000;width:21%">&nbsp;</P></center> <P STYLE="font-size:12pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
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<TD VALIGN="top" ALIGN="center"><B>Delaware</B></TD>
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<TD VALIGN="top" ALIGN="center"><B><FONT STYLE="white-space:nowrap">001-11073</FONT></B></TD>
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<TD VALIGN="top" ALIGN="center"><B><FONT STYLE="white-space:nowrap">47-0731996</FONT></B></TD></TR>
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<TD VALIGN="top" ALIGN="center"> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:8pt; font-family:Times New Roman" ALIGN="center"><B>(State or Other Jurisdiction</B></P>
<P STYLE="margin-top:0pt; margin-bottom:1pt; font-size:8pt; font-family:Times New Roman" ALIGN="center"><B>of Incorporation)</B></P></TD>
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<TD VALIGN="top" ALIGN="center"> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:8pt; font-family:Times New Roman" ALIGN="center"><B>(Commission</B></P>
<P STYLE="margin-top:0pt; margin-bottom:1pt; font-size:8pt; font-family:Times New Roman" ALIGN="center"><B>File Number)</B></P></TD>
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<TD VALIGN="top" ALIGN="center"> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:8pt; font-family:Times New Roman" ALIGN="center"><B>(I.R.S. Employer</B></P>
<P STYLE="margin-top:0pt; margin-bottom:1pt; font-size:8pt; font-family:Times New Roman" ALIGN="center"><B>Identification No.)</B></P></TD></TR>
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<TD VALIGN="top" ALIGN="center"> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center"><B>225 Liberty Street, 29th Floor</B></P>
<P STYLE="margin-top:0pt; margin-bottom:1pt; font-size:10pt; font-family:Times New Roman" ALIGN="center"><B>New York, New York 10281</B></P></TD>
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<TD VALIGN="bottom" ALIGN="center"><B>10281</B></TD></TR>
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<TD VALIGN="top" ALIGN="center"><B>(Address of Principal Executive Offices)</B></TD>
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<TD VALIGN="top" ALIGN="center"><B>(Zip Code)</B></TD></TR>
</TABLE> <P STYLE="margin-top:12pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center"><B>Registrant&#146;s Telephone Number, Including Area Code: (800)
<FONT STYLE="white-space:nowrap">735-3362</FONT> </B></P> <P STYLE="margin-top:14pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center"><B>Not Applicable </B></P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:8pt; font-family:Times New Roman" ALIGN="center"><B>(Former Name or Former Address, if Changed Since Last Report) </B></P>
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<P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">Check the appropriate box below if the Form <FONT STYLE="white-space:nowrap">8-K</FONT> filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions: </P> <P STYLE="font-size:6pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
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<TD ALIGN="left" VALIGN="top"> <P STYLE=" margin-top:0pt ; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman; " ALIGN="left">Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) </P></TD></TR></TABLE>
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<TD ALIGN="left" VALIGN="top"> <P STYLE=" margin-top:0pt ; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman; " ALIGN="left">Soliciting material pursuant to Rule <FONT STYLE="white-space:nowrap">14a-12</FONT> under the Exchange Act (17
CFR <FONT STYLE="white-space:nowrap">240.14a-12)</FONT> </P></TD></TR></TABLE> <P STYLE="font-size:6pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
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<TD ALIGN="left" VALIGN="top"> <P STYLE=" margin-top:0pt ; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman; " ALIGN="left"><FONT STYLE="white-space:nowrap">Pre-commencement</FONT> communications pursuant to Rule <FONT
STYLE="white-space:nowrap">14d-2(b)</FONT> under the Exchange Act (17 CFR <FONT STYLE="white-space:nowrap">240.14d-2(b))</FONT> </P></TD></TR></TABLE> <P STYLE="font-size:6pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
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<TD ALIGN="left" VALIGN="top"> <P STYLE=" margin-top:0pt ; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman; " ALIGN="left"><FONT STYLE="white-space:nowrap">Pre-commencement</FONT> communications pursuant to Rule <FONT
STYLE="white-space:nowrap">13e-4(c)</FONT> under the Exchange Act (17 CFR <FONT STYLE="white-space:nowrap">240.13e-4(c))</FONT> </P></TD></TR></TABLE>
<P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR
&#167;230.405) or Rule <FONT STYLE="white-space:nowrap">12b-2</FONT> of the Securities Exchange Act of 1934 (17 CFR <FONT STYLE="white-space:nowrap">&#167;240.12b-2).</FONT> </P> <P STYLE="font-size:12pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
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<TD VALIGN="bottom" ALIGN="right">Emerging growth company</TD>
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<TD VALIGN="bottom"> <P STYLE="font-size:12pt; margin-top:0pt; margin-bottom:0pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:1pt; text-indent:2.00em; font-size:10pt; font-family:Times New Roman">If an emerging growth company, indicate by
check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section&nbsp;13(a) of the Exchange Act.</P></TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="bottom">&#9744;&nbsp;&nbsp;&nbsp;&nbsp;</TD></TR>
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<TD WIDTH="9%" VALIGN="top" ALIGN="left"><B>Item&nbsp;1.01</B></TD>
<TD ALIGN="left" VALIGN="top"> <P STYLE=" margin-top:0pt ; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman; " ALIGN="left"><B>Entry into a Material Definitive Agreement </B></P></TD></TR></TABLE>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">On January&nbsp;16, 2019, First Data Corporation (&#147;<U>First Data</U>&#148;), Fiserv, Inc. (&#147;<U>Fiserv</U>&#148;) and 300 Holdings,
Inc. (&#147;<U>Merger Sub</U>&#148;), a wholly owned subsidiary of Fiserv, entered into an agreement and plan of merger (the &#147;<U>Merger Agreement</U>&#148;), pursuant to which, on the terms and subject to the conditions set forth in the Merger
Agreement, First Data will merge with and into Merger Sub (the &#147;<U>Merger</U>&#148;), with First Data being the surviving corporation of the Merger, and become a wholly owned subsidiary of Fiserv. </P>
<P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">The board of directors of each of Fiserv and First Data has unanimously approved the Merger Agreement and the transactions contemplated
thereby. </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">Simultaneously with the execution of the Merger Agreement, Fiserv entered into a voting and support agreement
(the&nbsp;&#147;<U>Voting and Support Agreement</U>&#148;) and certain other agreements with New Omaha Holdings L.P. (&#147;<U>New Omaha</U>&#148;). New Omaha, an affiliate of Kohlberg Kravis Roberts&nbsp;&amp; Co. L.P., currently controls
approximately 86% of the total voting power with respect to the outstanding shares of First Data&#146;s Class&nbsp;A common stock, par value $0.01 per share, and First Data&#146;s Class&nbsp;B common stock, par value $0.01 per share (collectively,
the &#147;<U>First Data Common Stock</U>&#148;), voting as a single class. </P> <P STYLE="margin-top:18pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman"><B><I>Merger Consideration </I></B></P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">On the terms and subject to the conditions set forth in the Merger Agreement, at the effective time of the Merger (the &#147;<U>Effective
Time</U>&#148;), each share of First Data Common Stock issued and outstanding immediately prior to the Effective Time will be converted into the right to receive 0.303 of a share (the&nbsp;&#147;<U>Exchange Ratio</U>&#148;) of common stock, par
value $0.01 per share, of Fiserv (the &#147;<U>Fiserv Common Stock</U>&#148;). </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">At the Effective Time, First Data&#146;s equity awards
will generally be converted into Fiserv equity awards and be governed by the same terms and conditions as were applicable to the corresponding First Data equity awards, in each case, after giving effect to the Exchange Ratio and appropriate
adjustments to reflect the consummation of the Merger and the terms and conditions applicable to such awards prior to the Effective Time. </P>
<P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">The shares of Fiserv Common Stock to be issued in the Merger will be listed on The NASDAQ Stock Market LLC (&#147;<U>NASDAQ</U>&#148;). </P>
<P STYLE="margin-top:18pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman"><B><I>Governance </I></B></P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">At the Effective Time,
the Chief Executive Officer of Fiserv immediately prior to the Effective Time (the &#147;<U>Fiserv CEO</U>&#148;) will continue to serve as the Chief Executive Officer of Fiserv and will become the Chairman of the board of directors of Fiserv, and
the Chief Executive Officer of First Data immediately prior to the Effective Time (the &#147;<U>First Data CEO</U>&#148;) will become the President and Chief Operating Officer of Fiserv and will serve as a director. </P>
<P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">The parties have agreed to certain other governance terms in the Merger Agreement and, prior to the closing, the board of directors of Fiserv
will cause Fiserv&#146;s <FONT STYLE="white-space:nowrap">By-Laws</FONT> to be amended and restated (as amended and restated, the &#147;<U>Amended <FONT STYLE="white-space:nowrap">By-Laws</FONT></U>&#148;) to reflect such terms. The Amended <FONT
STYLE="white-space:nowrap">By-Laws,</FONT> a form of which is set forth as Exhibit A to the Merger Agreement, will become effective as of the Effective Time. The governance terms described below will remain in place beginning on the closing date and
ending immediately following the conclusion of the second annual meeting of Fiserv&#146;s shareholders following the closing date. </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">At the
Effective Time, the board of directors of Fiserv will consist of ten directors, of whom (i)&nbsp;six will be individuals designated by Fiserv, consisting of five independent directors of Fiserv and the Fiserv CEO, and (ii)&nbsp;four will be
individuals designated by First Data, consisting of two independent directors of First Data, one director of First Data designated by and affiliated with New Omaha in accordance with the Shareholder Agreement, and the First Data CEO. At the
Effective Time, a director designated by Fiserv will be appointed as the Lead Director of the board of directors of Fiserv. </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">At the
Effective Time, the board of directors of Fiserv will have at least three standing committees: (i)&nbsp;an Audit Committee; (ii)&nbsp;a Compensation Committee; and (iii)&nbsp;a Nominating and Governance Committee. Each standing committee will have
three to four members, with at least one qualified director designated by First Data. At the Effective Time, the chairperson of the Compensation Committee will be a director designated by First Data. </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">2 </P>

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 <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman"><B><I>Conditions to the Merger </I></B></P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">Completion of the Merger is subject to customary closing conditions for both parties, including (i)&nbsp;the adoption of the Merger Agreement
by the stockholders of First Data; (ii)&nbsp;the approval of the issuance of Fiserv Common Stock pursuant to the Merger Agreement (the &#147;<U>Share Issuance</U>&#148;) by the shareholders of Fiserv; (iii)&nbsp;the approval for listing on the
NASDAQ of Fiserv Common Stock to be issued pursuant to the Merger Agreement; (iv)&nbsp;the receipt of specified regulatory approvals or the expiration or termination of applicable waiting periods, including the expiration or termination of the
applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (&#147;<U>HSR</U>&#148;); and (v)&nbsp;the effectiveness of the registration statement on Form <FONT STYLE="white-space:nowrap">S-4</FONT>
registering the Fiserv Common Stock issuable in the Merger and the absence of any stop order or proceedings by the U.S. Securities and Exchange Commission (&#147;<U>SEC</U>&#148;) with respect thereto. The obligation of each of Fiserv and First Data
to consummate the Merger is also conditioned on, among other things, the receipt by each of Fiserv and First Data of a tax opinion from its counsel as to the <FONT STYLE="white-space:nowrap">tax-free</FONT> nature of the Merger, the truth and
correctness of the representations and warranties made by the other party on the date of the Merger Agreement and on the closing date (subject to certain &#147;materiality&#148; and &#147;material adverse effect&#148; qualifications set forth in the
Merger Agreement with respect to such representations and warranties), and the performance by the other party in all material respects of its obligations under the Merger Agreement. In addition, the obligation of First Data to consummate the Merger
is conditioned on the adoption by Fiserv of the Amended <FONT STYLE="white-space:nowrap">By-Laws</FONT> implementing the governance terms described above, which Amended <FONT STYLE="white-space:nowrap">By-Laws</FONT> will become effective as of the
Effective Time. </P> <P STYLE="margin-top:18pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman"><B><I>Certain Other Terms of the Merger Agreement </I></B></P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">The Merger Agreement contains customary representations and warranties made by each of Fiserv and First Data, and also contains customary <FONT
STYLE="white-space:nowrap">pre-closing</FONT> covenants applicable to both parties, including mutual covenants, among others, (i)&nbsp;to operate its businesses in the ordinary course consistent with past practice in all material respects and to
refrain from taking certain actions without the other party&#146;s consent, (ii)&nbsp;not to solicit, initiate, seek or support or knowingly encourage or facilitate any inquiries or proposals, and, subject to certain exceptions, not to engage or
participate in any negotiations with any third party concerning any acquisition proposal or provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any third party relating to any acquisition
proposal, (iii)&nbsp;subject to certain exceptions, not to withdraw, change, qualify or modify the recommendation of its board of directors for the Merger Agreement or the Merger or the Share Issuance, as applicable, and (iv)&nbsp;to use its
respective reasonable best efforts to obtain governmental, regulatory and third party approvals. </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">In addition, the Merger Agreement
contains covenants that require each of Fiserv and First Data to obtain their respective requisite shareholder approval and stockholder approval and, subject to certain exceptions, the board of directors of Fiserv to recommend to its shareholders to
approve the Share Issuance, in the case of Fiserv, and the board of directors of First Data to recommend to its stockholders to approve and adopt the Merger Agreement, in the case of First Data. Pursuant to the Merger Agreement, Fiserv will call and
hold a shareholder meeting to obtain the requisite shareholder approval, and First Data will, in lieu of calling a meeting of its stockholders, provide a form of stockholder written consent as mutually agreed by the parties to First Data&#146;s
stockholders as soon as reasonably practicable after the registration statement on Form <FONT STYLE="white-space:nowrap">S-4</FONT> filed by Fiserv registering the Fiserv Common Stock issuable in the Merger is declared effective under the Securities
Act of 1933, as amended (&#147;<U>Securities Act</U>&#148;) (and, in the case of New Omaha, within 24 hours after such Form <FONT STYLE="white-space:nowrap">S-4</FONT> becomes effective) for the purpose of obtaining the requisite stockholder
approval. However, in the event that First Data&#146;s board of directors has changed its recommendation to its stockholders to approve and adopt the Merger Agreement, Fiserv will have the right, under certain circumstances, to request First Data to
call and hold a stockholders meeting to obtain the requisite stockholder approval of the adoption of the Merger Agreement. On the terms and conditions set forth in the Voting and Support Agreement, New Omaha irrevocably and unconditionally agreed
that it will, promptly following the time at which the registration statement on Form <FONT STYLE="white-space:nowrap">S-4</FONT> filed by Fiserv registering the Fiserv Common Stock issuable in the Merger becomes effective under the Securities Act
(and in any event within 24 hours of such time) and receipt by New Omaha of the joint proxy/written consent statement, execute and deliver its written consent to vote in favor of adopting the Merger Agreement and approving the Merger and against,
among other things, another acquisition proposal or merger, in each case, unless First Data&#146;s board of directors has changed its recommendation to its stockholders to approve and adopt the Merger Agreement. In the event that First Data&#146;s
board of directors has changed its recommendation to its stockholders to approve and adopt the Merger Agreement, New Omaha&#146;s voting obligation is reduced to 30% of the aggregate voting power of First Data&#146;s outstanding common stock plus
additional votes based on the voting percentage of First Data&#146;s other stockholders. </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">3 </P>

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<Center><DIV STYLE="width:8.5in" align="left">
 <P STYLE="margin-top:0pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">The Merger Agreement contains certain termination rights for each of Fiserv and First Data,
including in the event that (i)&nbsp;the Merger is not consummated on or before October&nbsp;16, 2019 (as that date may be extended first to January&nbsp;16, 2020 and then to April&nbsp;16, 2020, in each case, by either party under certain
circumstances in which the requisite regulatory approvals have not been obtained but all of the other closing conditions set forth in the Merger Agreement have been satisfied or waived), (ii) the requisite approval of the shareholders of Fiserv or
the stockholders of First Data is not obtained, (iii)&nbsp;any restraint having the effect of preventing the consummation of the Merger has become final and <FONT STYLE="white-space:nowrap">non-appealable</FONT> or (iv)&nbsp;there is a breach of any
of its covenants or agreements or any of its representations or warranties, which breach is material and not timely cured or cannot be cured. </P>
<P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">In addition, Fiserv and First Data can each terminate the Merger Agreement upon a material breach by the other party and, prior to obtaining
the requisite approval of the stockholders or shareholders, as applicable, of the other party if, among other things, the other party&#146;s board of directors has changed its recommendation that its shareholders approve the Share Issuance, in the
case of Fiserv, or its stockholders to approve and adopt the Merger Agreement, in the case of First Data, or has failed to make or reaffirm such recommendation in certain circumstances. The Merger Agreement further provides that, upon termination of
the Merger Agreement under specified circumstances, including termination by either party as a result of a change of recommendation by the other party&#146;s board of directors, such party will receive a termination fee equal to $665&nbsp;million in
cash. In addition, under certain circumstances, upon the termination of the Merger Agreement relating to the failure to obtain HSR clearance or approval under any antitrust or competition law of the United States, First Data will receive a
termination fee equal to $665&nbsp;million in cash. </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">The foregoing description of the Merger Agreement is qualified in its entirety by
reference to the full text of the Merger Agreement, which is attached hereto as Exhibit 2.1 and incorporated herein by reference. The Merger Agreement has been attached to provide investors with information regarding its terms. It is not intended to
provide any other factual information about Fiserv or First Data or their respective businesses. Investors should note that the representations, warranties and covenants contained in the Merger Agreement have been made solely for the benefit of the
parties to the Merger Agreement. In addition, the assertions embodied in the representations and warranties contained in the Merger Agreement are qualified by information in confidential disclosure schedules provided by each of Fiserv and First Data
in connection with the signing of the Merger Agreement. These confidential disclosure schedules contain information that modifies, qualifies and creates exceptions to the representations and warranties and certain covenants set forth in the Merger
Agreement. Moreover, the representations and warranties in the Merger Agreement were used for the purpose of allocating risk between Fiserv and First Data rather than establishing matters as facts, are subject to materiality qualifications contained
in the Merger Agreement which may differ from what may be viewed as material by investors and were made only as of the date of the Merger Agreement (or such other date or dates as may be specified in the Merger Agreement). Accordingly, the
representations and warranties in the Merger Agreement should not be relied upon as characterizations of the actual state of facts about Fiserv or First Data. </P>
<P STYLE="margin-top:12pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">* * * </P> <P STYLE="margin-top:14pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman"><B><U>IMPORTANT ADDITIONAL INFORMATION
AND WHERE TO FIND IT </U></B></P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">This communication is being made in respect of the proposed merger transaction between First Data and Fiserv.
In connection with the proposed merger, Fiserv will file with the SEC a registration statement on Form <FONT STYLE="white-space:nowrap">S-4</FONT> that will include the joint proxy/written consent solicitation statement of First Data and Fiserv and
a prospectus of Fiserv, as well as other relevant documents regarding the proposed transaction. A definitive joint proxy/written consent solicitation statement/prospectus will also be sent to First Data stockholders and Fiserv shareholders. This
communication does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or
sale would be unlawful prior to registration or qualification under the securities laws of such jurisdiction. INVESTORS ARE URGED TO READ THE REGISTRATION STATEMENT AND THE JOINT PROXY/WRITTEN CONSENT SOLICITATION STATEMENT/PROSPECTUS REGARDING THE
MERGER WHEN IT BECOMES AVAILABLE AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC, AS WELL AS ANY AMENDMENTS OR SUPPLEMENTS TO THOSE DOCUMENTS, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. </P>
<P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">A free copy of the joint proxy/written consent solicitation statement/prospectus, as well as other filings containing information about First
Data and Fiserv, may be obtained at the SEC&#146;s Internet site (http://www.sec.gov). You will also be able to obtain these documents, free of charge, from First Data by accessing First Data&#146;s website at investor.firstdata.com or from Fiserv
by accessing Fiserv&#146;s website at investors.fiserv.com. Copies of the joint proxy and consent solicitation statement/prospectus can also be obtained, free of charge, by directing a request to First Data Investor Relations at Investor
</P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">4 </P>

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<Center><DIV STYLE="width:8.5in" align="left">
 <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman">
Relations, First Data, 5565 Glenridge Connector NE, Suite 2000, by calling <FONT STYLE="white-space:nowrap"><FONT STYLE="white-space:nowrap">212-266-3565,</FONT></FONT> or by sending an <FONT
STYLE="white-space:nowrap">e-mail</FONT> to peter.poillon@firstdata.com or to Fiserv Investor Relations at Investor Relations, Fiserv, 255 Fiserv Drive Brookfield, WI 53045, by calling
<FONT STYLE="white-space:nowrap"><FONT STYLE="white-space:nowrap">800-425-3478</FONT></FONT> or by sending an <FONT STYLE="white-space:nowrap">e-mail</FONT> to investor.relations@fiserv.com. </P>
<P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">First Data and Fiserv and certain of their respective directors and executive officers may be deemed to be participants in the solicitation of
proxies from First Data stockholders and Fiserv shareholders in respect of the transaction described in the joint proxy/written consent solicitation statement/prospectus. Information regarding First Data&#146;s directors and executive officers is
contained in First Data&#146;s Annual Report on Form <FONT STYLE="white-space:nowrap">10-K</FONT> for the year ended December&nbsp;31, 2017 and its Proxy Statement on Schedule 14A, dated March&nbsp;29, 2018, which are filed with the SEC. Information
regarding Fiserv&#146;s directors and executive officers is contained in Fiserv&#146;s Annual Report on Form <FONT STYLE="white-space:nowrap">10-K</FONT> for the year ended December&nbsp;31, 2017 and its Proxy Statement on Schedule 14A, dated
April&nbsp;10, 2018, which are filed with the SEC. Additional information regarding the interests of those participants and other persons who may be deemed participants in the transaction may be obtained by reading the joint proxy and consent
solicitation statement/prospectus regarding the proposed merger when it becomes available. Free copies of this document may be obtained as described in the preceding paragraph. </P>
<P STYLE="margin-top:18pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman"><B><U>FORWARD-LOOKING STATEMENTS </U></B></P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">Certain of the matters discussed in this communication may constitute forward-looking statements. You can identify forward-looking statements
because they contain words such as &#147;believes,&#148; &#147;expects,&#148; &#147;may,&#148; &#147;will,&#148; &#147;should,&#148; &#147;seeks,&#148; &#147;intends,&#148; &#147;plans,&#148; &#147;estimates,&#148; or &#147;anticipates&#148; or
similar expressions which concern strategy, plans, projections or intentions. Examples of forward-looking statements include, but are not limited to, all statements made relating to revenue, earnings before net interest expense, income taxes,
depreciation and amortization, earnings, margins, growth rates and other financial results for future periods. By their nature, forward-looking statements speak only as of the date they are made; are not statements of historical fact or guarantees
of future performance; and are subject to risks, uncertainties, assumptions or changes in circumstances that are difficult to predict or quantify. In addition to factors previously disclosed in First Data&#146;s and Fiserv&#146;s reports filed with
the SEC and those identified elsewhere in this communication, the following factors, among others, could cause actual results to differ materially from forward-looking statements or historical performance: the occurrence of any event, change or
other circumstances that could give rise to the right of one or both of First Data and Fiserv to terminate the definitive merger agreement between First Data and Fiserv; the outcome of any legal proceedings that may be instituted against First Data,
Fiserv or their respective stockholders, shareholders or directors; the ability to obtain regulatory approvals and meet other closing conditions to the merger, including the risk that regulatory approvals required for the merger are not obtained or
are obtained subject to conditions that are not anticipated or that are material and adverse to First Data&#146;s or Fiserv&#146;s business; a delay in closing the merger; the ability to obtain approval by First Data stockholders and Fiserv
shareholders on the expected terms and schedule; difficulties and delays in integrating the First Data and Fiserv businesses, including with respect to implementing systems to prevent a material security breach of any internal systems or to
successfully manage credit and fraud risks in business units; failing to fully realizing anticipated cost savings and other anticipated benefits of the merger; business disruptions from the proposed merger that will harm First Data&#146;s or
Fiserv&#146;s business, including current plans and operations; potential adverse reactions or changes to business relationships resulting from the announcement or completion of the merger, including as it relates to First Data&#146;s or
Fiserv&#146;s ability to successfully renew existing client contracts on favorable terms or at all and obtain new clients; certain restrictions during the pendency of the merger that may impact First Data&#146;s or Fiserv&#146;s ability to pursue
certain business opportunities or strategic transactions; the ability of First Data or Fiserv to retain and hire key personnel; uncertainty as to the long-term value of the common stock of Fiserv following the merger; the continued availability of
capital and financing following the merger; the business, economic and political conditions in the markets in which First Data and Fiserv operate; the impact of new or changes in current laws, regulations, credit card association rules or other
industry standards, including privacy and cybersecurity laws and regulations; and events beyond First Data&#146;s or Fiserv&#146;s control, such as acts of terrorism. </P>
<P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">Any forward-looking statements speak only as of the date of this communication or as of the date they were made, and neither First Data nor
Fiserv undertakes any obligation to update forward-looking statements. For a more detailed discussion of these factors, also see the information under the captions &#147;Risk Factors&#148; and &#147;Management&#146;s Discussion and Analysis of
Financial Condition and Results of Operations&#148; in First Data&#146;s and Fiserv&#146;s most recent reports on Form <FONT STYLE="white-space:nowrap">10-K</FONT> for the year ended December&nbsp;31, 2017, and any material updates to these factors
contained in any of First Data&#146;s and Fiserv&#146;s future filings. </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">As for the forward-looking statements that relate to future
financial results and other projections, actual results will be different due to the inherent uncertainties of estimates, forecasts and projections and may be better or worse than projected and such differences could be material. Given these
uncertainties, you should not place any reliance on these forward-looking statements. Annualized, pro forma, projected and estimated numbers are used for illustrative purpose only, are not forecasts and may not reflect actual results. </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">5 </P>

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<TR style = "page-break-inside:avoid">
<TD WIDTH="9%" VALIGN="top" ALIGN="left"><B>Item&nbsp;9.01</B></TD>
<TD ALIGN="left" VALIGN="top"> <P STYLE=" margin-top:0pt ; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman; " ALIGN="left"><B>Financial Statements and Exhibits </B></P></TD></TR></TABLE>
<P STYLE="font-size:12pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
<TABLE CELLSPACING="0" CELLPADDING="0" WIDTH="100%" BORDER="0" STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:8pt" ALIGN="center">


<TR>
<TD WIDTH="7%"></TD>
<TD VALIGN="bottom" WIDTH="3%"></TD>
<TD WIDTH="90%"></TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:8pt">
<TD VALIGN="bottom" NOWRAP> <P STYLE=" margin-top:0pt ; margin-bottom:0pt; border-bottom:1.00pt solid #000000; display:table-cell; font-size:8pt; font-family:Times New Roman; "><B>Exhibit&nbsp;No.</B></P></TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="bottom"> <P STYLE=" margin-top:0pt ; margin-bottom:0pt; border-bottom:1.00pt solid #000000; display:table-cell; font-size:8pt; font-family:Times New Roman; "><B>Description</B></P></TD></TR>


<TR STYLE="font-size:1pt">
<TD HEIGHT="8"></TD>
<TD HEIGHT="8" COLSPAN="2"></TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top" NOWRAP> <P STYLE=" margin-top:0pt ; margin-bottom:0pt; margin-left:1.00em; text-indent:-1.00em; font-size:10pt; font-family:Times New Roman">2.1</P></TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="top"><A HREF="d653899dex21.htm">Agreement and Plan of Merger, dated as of January&nbsp;16, 2019, by and among Fiserv, Inc., 300 Holdings, Inc. and First Data Corporation* </A></TD></TR>
</TABLE> <P STYLE="font-size:6pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
<TABLE STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:10pt" BORDER="0" CELLPADDING="0" CELLSPACING="0" WIDTH="100%">
<TR style = "page-break-inside:avoid">
<TD WIDTH="4%" VALIGN="top" ALIGN="left">*</TD>
<TD ALIGN="left" VALIGN="top"> <P STYLE=" margin-top:0pt ; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman; " ALIGN="left">The schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation <FONT
STYLE="white-space:nowrap">S-K.</FONT> First Data agrees to furnish a copy of such schedules and exhibits, or any section thereof, to the SEC upon request. </P></TD></TR></TABLE>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">6 </P>

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 <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center"><B>SIGNATURE </B></P>
<P STYLE="margin-top:12pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman">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. </P> <P STYLE="font-size:12pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
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<TD VALIGN="bottom" WIDTH="1%"></TD>
<TD WIDTH="4%"></TD>
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<TD WIDTH="4%"></TD>
<TD VALIGN="bottom" WIDTH="1%"></TD>
<TD WIDTH="44%"></TD></TR>


<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="bottom"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="bottom"> <P STYLE="margin-top:0pt; margin-bottom:0pt; border-bottom:1px solid #000000; font-size:10pt; font-family:Times New Roman" ALIGN="center">FIRST DATA CORPORATION</P>
<P STYLE="margin-top:0pt; margin-bottom:1pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">(Registrant)</P></TD></TR>
<TR STYLE="font-size:1pt">
<TD HEIGHT="16"></TD>
<TD HEIGHT="16" COLSPAN="2"></TD>
<TD HEIGHT="16" COLSPAN="2"></TD>
<TD HEIGHT="16" COLSPAN="2"></TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top">Date: January&nbsp;17, 2019</TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="bottom">By:</TD>
<TD VALIGN="bottom" STYLE=" BORDER-BOTTOM:1px solid #000000">&nbsp;</TD>
<TD VALIGN="top" ALIGN="center" STYLE="BORDER-BOTTOM:1px solid #000000">/s/ Adam L. Rosman</TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top" ALIGN="center">(Signature)</TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top">Name:</TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top">Adam L. Rosman</TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="bottom"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top">Title:</TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="bottom">Executive Vice President and General Counsel</TD></TR>
</TABLE>
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</BODY></HTML>
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{"company-data": {"conformed-name": "FIRST DATA CORP", "cik": "0000883980", "assigned-sic": "7389", "irs-number": "470731996", "state-of-incorporation": "DE", "fiscal-year-end": "1231"}, "filing-values": {"form-type": "8-K", "act": "34", "file-number": "001-11073", "film-number": "19532057"}, "business-address": {"street1": "225 LIBERTY STREET", "street2": "29TH FLOOR", "city": "NEW YORK", "state": "NY", "zip": "10281", "phone": "(800) 735-3362"}, "mail-address": {"street1": "225 LIBERTY STREET", "street2": "29TH FLOOR", "city": "NEW YORK", "state": "NY", "zip": "10281"}}
8-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 17, 2019
First Data Corporation
(Exact Name of Registrant as Specified in Charter)
Delaware
001-11073
47-0731996
(State or Other Jurisdiction
of Incorporation)
(Commission
File Number)
(I.R.S. Employer
Identification No.)
225 Liberty Street, 29th Floor
New York, New York 10281
10281
(Address of Principal Executive Offices)
(Zip Code)
Registrant's Telephone Number, Including Area Code: (800)
735-3362
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form
8-K
filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
☑
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule
14a-12
under the Exchange Act (17
CFR
240.14a-12)
☐
Pre-commencement
communications pursuant to Rule
14d-2(b)
under the Exchange Act (17 CFR
240.14d-2(b))
☐
Pre-commencement
communications pursuant to Rule
13e-4(c)
under the Exchange Act (17 CFR
240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR
§230.405) or Rule
12b-2
of the Securities Exchange Act of 1934 (17 CFR
§240.12b-2).
Emerging growth company
☐
If an emerging growth company, indicate by
check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
☐
Item 1.01
Entry into a Material Definitive Agreement
On January 16, 2019, First Data Corporation ("
First Data
"), Fiserv, Inc. ("
Fiserv
") and 300 Holdings,
Inc. ("
Merger Sub
"), a wholly owned subsidiary of Fiserv, entered into an agreement and plan of merger (the "
Merger Agreement
"), pursuant to which, on the terms and subject to the conditions set forth in the Merger
Agreement, First Data will merge with and into Merger Sub (the "
Merger
"), with First Data being the surviving corporation of the Merger, and become a wholly owned subsidiary of Fiserv.
The board of directors of each of Fiserv and First Data has unanimously approved the Merger Agreement and the transactions contemplated
thereby.
Simultaneously with the execution of the Merger Agreement, Fiserv entered into a voting and support agreement
(the "
Voting and Support Agreement
") and certain other agreements with New Omaha Holdings L.P. ("
New Omaha
"). New Omaha, an affiliate of Kohlberg Kravis Roberts & Co. L.P., currently controls
approximately 86% of the total voting power with respect to the outstanding shares of First Data's Class A common stock, par value $0.01 per share, and First Data's Class B common stock, par value $0.01 per share (collectively,
the "
First Data Common Stock
"), voting as a single class.
Merger Consideration
On the terms and subject to the conditions set forth in the Merger Agreement, at the effective time of the Merger (the "
Effective
Time
"), each share of First Data Common Stock issued and outstanding immediately prior to the Effective Time will be converted into the right to receive 0.303 of a share (the "
Exchange Ratio
") of common stock, par
value $0.01 per share, of Fiserv (the "
Fiserv Common Stock
").
At the Effective Time, First Data's equity awards
will generally be converted into Fiserv equity awards and be governed by the same terms and conditions as were applicable to the corresponding First Data equity awards, in each case, after giving effect to the Exchange Ratio and appropriate
adjustments to reflect the consummation of the Merger and the terms and conditions applicable to such awards prior to the Effective Time.
The shares of Fiserv Common Stock to be issued in the Merger will be listed on The NASDAQ Stock Market LLC ("
NASDAQ
").
Governance
At the Effective Time,
the Chief Executive Officer of Fiserv immediately prior to the Effective Time (the "
Fiserv CEO
") will continue to serve as the Chief Executive Officer of Fiserv and will become the Chairman of the board of directors of Fiserv, and
the Chief Executive Officer of First Data immediately prior to the Effective Time (the "
First Data CEO
") will become the President and Chief Operating Officer of Fiserv and will serve as a director.
The parties have agreed to certain other governance terms in the Merger Agreement and, prior to the closing, the board of directors of Fiserv
will cause Fiserv's
By-Laws
to be amended and restated (as amended and restated, the "
Amended
By-Laws
") to reflect such terms. The Amended
By-Laws,
a form of which is set forth as Exhibit A to the Merger Agreement, will become effective as of the Effective Time. The governance terms described below will remain in place beginning on the closing date and
ending immediately following the conclusion of the second annual meeting of Fiserv's shareholders following the closing date.
At the
Effective Time, the board of directors of Fiserv will consist of ten directors, of whom (i) six will be individuals designated by Fiserv, consisting of five independent directors of Fiserv and the Fiserv CEO, and (ii) four will be
individuals designated by First Data, consisting of two independent directors of First Data, one director of First Data designated by and affiliated with New Omaha in accordance with the Shareholder Agreement, and the First Data CEO. At the
Effective Time, a director designated by Fiserv will be appointed as the Lead Director of the board of directors of Fiserv.
At the
Effective Time, the board of directors of Fiserv will have at least three standing committees: (i) an Audit Committee; (ii) a Compensation Committee; and (iii) a Nominating and Governance Committee. Each standing committee will have
three to four members, with at least one qualified director designated by First Data. At the Effective Time, the chairperson of the Compensation Committee will be a director designated by First Data.
2
Conditions to the Merger
Completion of the Merger is subject to customary closing conditions for both parties, including (i) the adoption of the Merger Agreement
by the stockholders of First Data; (ii) the approval of the issuance of Fiserv Common Stock pursuant to the Merger Agreement (the "
Share Issuance
") by the shareholders of Fiserv; (iii) the approval for listing on the
NASDAQ of Fiserv Common Stock to be issued pursuant to the Merger Agreement; (iv) the receipt of specified regulatory approvals or the expiration or termination of applicable waiting periods, including the expiration or termination of the
applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended ("
HSR
"); and (v) the effectiveness of the registration statement on Form
S-4
registering the Fiserv Common Stock issuable in the Merger and the absence of any stop order or proceedings by the U.S. Securities and Exchange Commission ("
SEC
") with respect thereto. The obligation of each of Fiserv and First Data
to consummate the Merger is also conditioned on, among other things, the receipt by each of Fiserv and First Data of a tax opinion from its counsel as to the
tax-free
nature of the Merger, the truth and
correctness of the representations and warranties made by the other party on the date of the Merger Agreement and on the closing date (subject to certain "materiality" and "material adverse effect" qualifications set forth in the
Merger Agreement with respect to such representations and warranties), and the performance by the other party in all material respects of its obligations under the Merger Agreement. In addition, the obligation of First Data to consummate the Merger
is conditioned on the adoption by Fiserv of the Amended
By-Laws
implementing the governance terms described above, which Amended
By-Laws
will become effective as of the
Effective Time.
Certain Other Terms of the Merger Agreement
The Merger Agreement contains customary representations and warranties made by each of Fiserv and First Data, and also contains customary
pre-closing
covenants applicable to both parties, including mutual covenants, among others, (i) to operate its businesses in the ordinary course consistent with past practice in all material respects and to
refrain from taking certain actions without the other party's consent, (ii) not to solicit, initiate, seek or support or knowingly encourage or facilitate any inquiries or proposals, and, subject to certain exceptions, not to engage or
participate in any negotiations with any third party concerning any acquisition proposal or provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any third party relating to any acquisition
proposal, (iii) subject to certain exceptions, not to withdraw, change, qualify or modify the recommendation of its board of directors for the Merger Agreement or the Merger or the Share Issuance, as applicable, and (iv) to use its
respective reasonable best efforts to obtain governmental, regulatory and third party approvals.
In addition, the Merger Agreement
contains covenants that require each of Fiserv and First Data to obtain their respective requisite shareholder approval and stockholder approval and, subject to certain exceptions, the board of directors of Fiserv to recommend to its shareholders to
approve the Share Issuance, in the case of Fiserv, and the board of directors of First Data to recommend to its stockholders to approve and adopt the Merger Agreement, in the case of First Data. Pursuant to the Merger Agreement, Fiserv will call and
hold a shareholder meeting to obtain the requisite shareholder approval, and First Data will, in lieu of calling a meeting of its stockholders, provide a form of stockholder written consent as mutually agreed by the parties to First Data's
stockholders as soon as reasonably practicable after the registration statement on Form
S-4
filed by Fiserv registering the Fiserv Common Stock issuable in the Merger is declared effective under the Securities
Act of 1933, as amended ("
Securities Act
") (and, in the case of New Omaha, within 24 hours after such Form
S-4
becomes effective) for the purpose of obtaining the requisite stockholder
approval. However, in the event that First Data's board of directors has changed its recommendation to its stockholders to approve and adopt the Merger Agreement, Fiserv will have the right, under certain circumstances, to request First Data to
call and hold a stockholders meeting to obtain the requisite stockholder approval of the adoption of the Merger Agreement. On the terms and conditions set forth in the Voting and Support Agreement, New Omaha irrevocably and unconditionally agreed
that it will, promptly following the time at which the registration statement on Form
S-4
filed by Fiserv registering the Fiserv Common Stock issuable in the Merger becomes effective under the Securities Act
(and in any event within 24 hours of such time) and receipt by New Omaha of the joint proxy/written consent statement, execute and deliver its written consent to vote in favor of adopting the Merger Agreement and approving the Merger and against,
among other things, another acquisition proposal or merger, in each case, unless First Data's board of directors has changed its recommendation to its stockholders to approve and adopt the Merger Agreement. In the event that First Data's
board of directors has changed its recommendation to its stockholders to approve and adopt the Merger Agreement, New Omaha's voting obligation is reduced to 30% of the aggregate voting power of First Data's outstanding common stock plus
additional votes based on the voting percentage of First Data's other stockholders.
3
The Merger Agreement contains certain termination rights for each of Fiserv and First Data,
including in the event that (i) the Merger is not consummated on or before October 16, 2019 (as that date may be extended first to January 16, 2020 and then to April 16, 2020, in each case, by either party under certain
circumstances in which the requisite regulatory approvals have not been obtained but all of the other closing conditions set forth in the Merger Agreement have been satisfied or waived), (ii) the requisite approval of the shareholders of Fiserv or
the stockholders of First Data is not obtained, (iii) any restraint having the effect of preventing the consummation of the Merger has become final and
non-appealable
or (iv) there is a breach of any
of its covenants or agreements or any of its representations or warranties, which breach is material and not timely cured or cannot be cured.
In addition, Fiserv and First Data can each terminate the Merger Agreement upon a material breach by the other party and, prior to obtaining
the requisite approval of the stockholders or shareholders, as applicable, of the other party if, among other things, the other party's board of directors has changed its recommendation that its shareholders approve the Share Issuance, in the
case of Fiserv, or its stockholders to approve and adopt the Merger Agreement, in the case of First Data, or has failed to make or reaffirm such recommendation in certain circumstances. The Merger Agreement further provides that, upon termination of
the Merger Agreement under specified circumstances, including termination by either party as a result of a change of recommendation by the other party's board of directors, such party will receive a termination fee equal to $665 million in
cash. In addition, under certain circumstances, upon the termination of the Merger Agreement relating to the failure to obtain HSR clearance or approval under any antitrust or competition law of the United States, First Data will receive a
termination fee equal to $665 million in cash.
The foregoing description of the Merger Agreement is qualified in its entirety by
reference to the full text of the Merger Agreement, which is attached hereto as Exhibit 2.1 and incorporated herein by reference. The Merger Agreement has been attached to provide investors with information regarding its terms. It is not intended to
provide any other factual information about Fiserv or First Data or their respective businesses. Investors should note that the representations, warranties and covenants contained in the Merger Agreement have been made solely for the benefit of the
parties to the Merger Agreement. In addition, the assertions embodied in the representations and warranties contained in the Merger Agreement are qualified by information in confidential disclosure schedules provided by each of Fiserv and First Data
in connection with the signing of the Merger Agreement. These confidential disclosure schedules contain information that modifies, qualifies and creates exceptions to the representations and warranties and certain covenants set forth in the Merger
Agreement. Moreover, the representations and warranties in the Merger Agreement were used for the purpose of allocating risk between Fiserv and First Data rather than establishing matters as facts, are subject to materiality qualifications contained
in the Merger Agreement which may differ from what may be viewed as material by investors and were made only as of the date of the Merger Agreement (or such other date or dates as may be specified in the Merger Agreement). Accordingly, the
representations and warranties in the Merger Agreement should not be relied upon as characterizations of the actual state of facts about Fiserv or First Data.
* * *
IMPORTANT ADDITIONAL INFORMATION
AND WHERE TO FIND IT
This communication is being made in respect of the proposed merger transaction between First Data and Fiserv.
In connection with the proposed merger, Fiserv will file with the SEC a registration statement on Form
S-4
that will include the joint proxy/written consent solicitation statement of First Data and Fiserv and
a prospectus of Fiserv, as well as other relevant documents regarding the proposed transaction. A definitive joint proxy/written consent solicitation statement/prospectus will also be sent to First Data stockholders and Fiserv shareholders. This
communication does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or
sale would be unlawful prior to registration or qualification under the securities laws of such jurisdiction. INVESTORS ARE URGED TO READ THE REGISTRATION STATEMENT AND THE JOINT PROXY/WRITTEN CONSENT SOLICITATION STATEMENT/PROSPECTUS REGARDING THE
MERGER WHEN IT BECOMES AVAILABLE AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC, AS WELL AS ANY AMENDMENTS OR SUPPLEMENTS TO THOSE DOCUMENTS, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION.
A free copy of the joint proxy/written consent solicitation statement/prospectus, as well as other filings containing information about First
Data and Fiserv, may be obtained at the SEC's Internet site (http://www.sec.gov). You will also be able to obtain these documents, free of charge, from First Data by accessing First Data's website at investor.firstdata.com or from Fiserv
by accessing Fiserv's website at investors.fiserv.com. Copies of the joint proxy and consent solicitation statement/prospectus can also be obtained, free of charge, by directing a request to First Data Investor Relations at Investor
4
Relations, First Data, 5565 Glenridge Connector NE, Suite 2000, by calling
212-266-3565,
or by sending an
e-mail
to peter.poillon@firstdata.com or to Fiserv Investor Relations at Investor Relations, Fiserv, 255 Fiserv Drive Brookfield, WI 53045, by calling
800-425-3478
or by sending an
e-mail
to investor.relations@fiserv.com.
First Data and Fiserv and certain of their respective directors and executive officers may be deemed to be participants in the solicitation of
proxies from First Data stockholders and Fiserv shareholders in respect of the transaction described in the joint proxy/written consent solicitation statement/prospectus. Information regarding First Data's directors and executive officers is
contained in First Data's Annual Report on Form
10-K
for the year ended December 31, 2017 and its Proxy Statement on Schedule 14A, dated March 29, 2018, which are filed with the SEC. Information
regarding Fiserv's directors and executive officers is contained in Fiserv's Annual Report on Form
10-K
for the year ended December 31, 2017 and its Proxy Statement on Schedule 14A, dated
April 10, 2018, which are filed with the SEC. Additional information regarding the interests of those participants and other persons who may be deemed participants in the transaction may be obtained by reading the joint proxy and consent
solicitation statement/prospectus regarding the proposed merger when it becomes available. Free copies of this document may be obtained as described in the preceding paragraph.
FORWARD-LOOKING STATEMENTS
Certain of the matters discussed in this communication may constitute forward-looking statements. You can identify forward-looking statements
because they contain words such as "believes," "expects," "may," "will," "should," "seeks," "intends," "plans," "estimates," or "anticipates" or
similar expressions which concern strategy, plans, projections or intentions. Examples of forward-looking statements include, but are not limited to, all statements made relating to revenue, earnings before net interest expense, income taxes,
depreciation and amortization, earnings, margins, growth rates and other financial results for future periods. By their nature, forward-looking statements speak only as of the date they are made; are not statements of historical fact or guarantees
of future performance; and are subject to risks, uncertainties, assumptions or changes in circumstances that are difficult to predict or quantify. In addition to factors previously disclosed in First Data's and Fiserv's reports filed with
the SEC and those identified elsewhere in this communication, the following factors, among others, could cause actual results to differ materially from forward-looking statements or historical performance: the occurrence of any event, change or
other circumstances that could give rise to the right of one or both of First Data and Fiserv to terminate the definitive merger agreement between First Data and Fiserv; the outcome of any legal proceedings that may be instituted against First Data,
Fiserv or their respective stockholders, shareholders or directors; the ability to obtain regulatory approvals and meet other closing conditions to the merger, including the risk that regulatory approvals required for the merger are not obtained or
are obtained subject to conditions that are not anticipated or that are material and adverse to First Data's or Fiserv's business; a delay in closing the merger; the ability to obtain approval by First Data stockholders and Fiserv
shareholders on the expected terms and schedule; difficulties and delays in integrating the First Data and Fiserv businesses, including with respect to implementing systems to prevent a material security breach of any internal systems or to
successfully manage credit and fraud risks in business units; failing to fully realizing anticipated cost savings and other anticipated benefits of the merger; business disruptions from the proposed merger that will harm First Data's or
Fiserv's business, including current plans and operations; potential adverse reactions or changes to business relationships resulting from the announcement or completion of the merger, including as it relates to First Data's or
Fiserv's ability to successfully renew existing client contracts on favorable terms or at all and obtain new clients; certain restrictions during the pendency of the merger that may impact First Data's or Fiserv's ability to pursue
certain business opportunities or strategic transactions; the ability of First Data or Fiserv to retain and hire key personnel; uncertainty as to the long-term value of the common stock of Fiserv following the merger; the continued availability of
capital and financing following the merger; the business, economic and political conditions in the markets in which First Data and Fiserv operate; the impact of new or changes in current laws, regulations, credit card association rules or other
industry standards, including privacy and cybersecurity laws and regulations; and events beyond First Data's or Fiserv's control, such as acts of terrorism.
Any forward-looking statements speak only as of the date of this communication or as of the date they were made, and neither First Data nor
Fiserv undertakes any obligation to update forward-looking statements. For a more detailed discussion of these factors, also see the information under the captions "Risk Factors" and "Management's Discussion and Analysis of
Financial Condition and Results of Operations" in First Data's and Fiserv's most recent reports on Form
10-K
for the year ended December 31, 2017, and any material updates to these factors
contained in any of First Data's and Fiserv's future filings.
As for the forward-looking statements that relate to future
financial results and other projections, actual results will be different due to the inherent uncertainties of estimates, forecasts and projections and may be better or worse than projected and such differences could be material. Given these
uncertainties, you should not place any reliance on these forward-looking statements. Annualized, pro forma, projected and estimated numbers are used for illustrative purpose only, are not forecasts and may not reflect actual results.
5
Item 9.01
Financial Statements and Exhibits
Exhibit No.
Description
2.1
Agreement and Plan of Merger, dated as of January 16, 2019, by and among Fiserv, Inc., 300 Holdings, Inc. and First Data Corporation*
*
The schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation
S-K.
First Data agrees to furnish a copy of such schedules and exhibits, or any section thereof, to the SEC upon request.
6
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
FIRST DATA CORPORATION
(Registrant)
Date: January 17, 2019
By:
/s/ Adam L. Rosman
(Signature)
Name:
Adam L. Rosman
Title:
Executive Vice President and General Counsel