EFiled: Apr 03 2019 06:55PM EDT Transaction ID 63131194 Case No. 2019-0255- IN THE COURT OF CHANCERY IN THE STATE OF DELAWARE ALAN SKULSKY, On Behalf of Himself and All Others Similarly C.A. No. Situated, Plaintiff, v. FRANK BISIGNANO, JOSEPH PLUMERI, HENRIQUE DE CASTRO, HENRY R. KRAVIS, HEIDI G. MILLER, JAMES E. NEVELS, SCOTT C. NUTTALL, TAGAR C. OLSON, and BARBARA A. YASTINE, Defendants. VERIFIED CLASS ACTION COMPLAINT Plaintiff Alan Skulsky (“Plaintiff”), through undersigned counsel, brings this Complaint on behalf of himself and similarly situated holders of the common stock of First Data Corporation (“First Data” or the “Company”) against the members of the Board of Directors (as defined herein) of First Data for breaching their fiduciary duties in connection with the proposed merger between First Data and Fiserv, Inc. (“Fiserv”), (the “Proposed Merger”). This action also seeks an order requiring that the First Data Board comply with their fiduciary obligations and awarding Plaintiff and the Class (as defined herein) damages suffered as a result of Defendants’ wrongdoing. - 1 - The allegations of this Complaint are based on Plaintiff’s knowledge as to himself, and on information and belief based upon, among other things, the investigation of counsel and publicly available information, as to all other matters. SUMMARY OF THE ACTION 1. This is a stockholder class action brought by Plaintiff on behalf of similarly situated First Data stockholders against the First Data Board for breaches of fiduciary duty and/or other violations of state law arising out of their efforts to effectuate the merger of First Data with Fiserv pursuant to an unfair process and for an unfair price. 2. On January 16, 2019, First Data announced that it had entered into a definitive merger agreement (the “Merger Agreement”), pursuant to which a direct, wholly owned subsidiary of Fiserv will merge with and into First Data with First Data surviving as a direct, wholly owned subsidiary of Fiserv. First Data stockholders will receive only 0.303 of a share of Fiserv common stock for each share of First Data common stock that they own (the “Merger Consideration”). 3. The Proposed Merger fails to maximize shareholder value and to protect the interests of First Data’s stockholders. Instead, Defendants engaged in a process that was designed to benefit controlling stockholder KKR & Co. Inc. (“KKR”) to the detriment of the Company’s non-insider stockholders. As such, the Proposed Merger is subject to exacting entire fairness review, which requires the - 2 - Defendants to establish that the Proposed Merger was the result of a fair process and provides First Data stockholders with fair consideration for their shares. For the reasons set forth below, neither can be established. 4. On March 14, 2019, Defendants authorized the filing of a materially incomplete and misleading definitive proxy statement (the “Proxy”) with the Securities and Exchange Commission (“SEC”), in violation of their fiduciary duties. In particular, the Proxy contains materially incomplete and misleading information concerning: (i) the financial compensation and conflicts of interest faced by First Data’s financial advisor, Merrill Lynch, Pierce, Fenner & Smith Incorporated (“BofA Merrill Lynch” or “BAML”); (ii) the details surrounding conflicts of interest faced by the Defendants in negotiating the Proposed Merger; (iii) the financial projections for First Data; and (iv) the valuation analyses performed by BAML and Evercore Group L.L.C.1 (“Evercore” and together with BAML, the “Financial Advisors”). 5. In facilitating the acquisition of First Data by Fiserv for inadequate consideration, conducting a flawed process, and disseminating an incomplete and 1 According to the Proxy, Evercore were engaged as financial advisors to the “First Data independent directors.” However, the Proxy fails to identify who the independent directors are, how they were independent, or who/what they were independent from. Moreover, despite retaining separate counsel and a financial advisor, the “independent directors” failed to take the proper steps to form a special committee, bar conflicted directors from the negotiations, or cleanse any of the defects of the deeply flawed sales process. - 3 - misleading Proxy, each of the Director Defendants breached their fiduciary duties. As set forth below, instead of working to maximize shareholder value as required, the Director Defendants agreed to hand over the Company to Fiserv for a demonstrably unfair price. If the Director Defendants are able to consummate the Proposed Merger, First Data’s public stockholders will not receive the true value of their investment. 6. For these reasons and as set forth in detail herein, Plaintiffs seek to recover damages resulting from the Defendants’ breaches of their fiduciary duties of loyalty, good faith, and due care and/or aiding and abetting such breaches. PARTIES I. Plaintiff 7. Plaintiff is, and at all relevant times has been, a continuous stockholder of First Data. II. Defendants 8. Defendant Frank Bisignano (“Bisignano”) has served as Chief Executive Officer of First Data since 2013 and Chairman of the Board since 2014. Upon the consummation of the Proposed Merger, Bisignano will receive exorbitant monetary compensation, detailed further below, and continue on with the combined company as president, chief operating officer, and board member. - 4 - 9. Defendant Joseph Plumeri (“Plumeri”) is vice chairman of the First Data Board of Directors. Plumeri was originally appointed to the Board in August 2013 by KKR where he is employed as a senior advisor. Since then he also has been serving as senior advisor to Bisignano, and as the head of First Data’s client delivery, innovation and marketing organization. He assumed the vice chairman role in May 2014. Plumeri has a long history with KKR dating back to 2000 when KKR appointed Plumeri as the Chairman/CEO of Willis Group Holdings Ltd. 10. Defendant Henrique De Castro (“De Castro”) has served as a director of the Company since July 2017. 11. Defendant Henry R. Kravis (“Kravis”) has served as a director of the Company since September 2009. Kravis co-founded KKR in 1976 and is Co- Chairman and Co-Chief Executive Officer. He is actively involved in managing KKR and serves on each of the regional Private Equity Investment and Portfolio Management Committees. 12. Defendant Heidi G. Miller (“Miller”) has served as a director of the Company since April 2014. 13. Defendant James E. Nevels (“Nevels”) has served as a director of the Company since April 2014. 14. Defendant Scott C. Nuttall (“Nuttall”) has served as a director of the Company since September 2007. Nuttall joined KKR in 1996 and is head of KKR’s - 5 - Global Capital and Asset Management Group. He has played a significant role in several of KKR’s private equity investments. Nuttall currently serves as the Co- President and Co-Chief Operating Officer of KKR and is a member of their board of directors. 15. Defendant Tagar C. Olson (“Olson”) has served as a director of the Company since September 2007. Olson joined KKR in 2002. He heads the Financial Services as well as the Hospitality and Leisure industry teams and sits on the Investment Committee within KKR’s Americas Private Equity platform. 16. Defendant Barbara Yastine (“Yastine”) has served as a director of the Company since September 2016.n 17. Defendants Bisignano, Plumeri, De Castro, Kravis, Miller, Nevels, Nuttall, Olson, and Yastine form the Board of Directors of First Data and are collectively referred to herein as the “Board” or the “Director Defendants.” III. Relevant Non-Parties 18. First Data is a corporation organized and existing under the laws of the State of Delaware with its principal executive offices located at 225 Liberty Street, 29th Floor, New York, New York 10281. First Data is a global electronic commerce company offering an array of next-generation commerce technologies, merchant acquiring, issuing, and network solutions. - 6 - 19. Fiserv is a Wisconsin corporation with its principal executive offices located at 255 Fiserv Drive, Brookfield, Wisconsin 53045. Fiserv is a global provider of financial services technology. 20. KKR (until July 1, 2018 KKR & Co. L.P.) is a corporation organized and existing under the laws of the State of Delaware with its principal executive offices located at 9 West 57th Street, Suite 4200, New York, New York 10019. KKR is a global investment firm that manages investments across multiple asset classes. KKR, through its investment vehicle New Omaha Holdings L.P., owns over 39% of First Data common stock and controls 86% of the total aggregate voting power of the shares of First Data. 21. New Omaha Holdings L.P. (“New Omaha”) is an investment vehicle entirely owned by KKR. New Omaha is the beneficial owner of 364,441,146 shares of First Data Class B common stock. Shares of First Data Class B common stock are convertible into shares of First Data Class A common stock on a one-for-one basis at any time at the option of the holder with the prior consent of First Data, upon the election of the holders of a majority of the then-outstanding shares of First Data Class B common stock, automatically upon transfer, with certain exceptions, and upon certain other events. Holders of First Data Class B common stock are entitled to 10 votes per share and holders of First Data Class A common stock are entitled to one vote per share. Accordingly, New Omaha is the beneficial owner of over 39% - 7 - of First Data common stock and controls 86% of the total aggregate voting power of the shares of First Data. THE DIRECTOR DEFENDANTS’ FIDUCIARY DUTIES 22. By reason of the Director Defendants’ positions with the Company as officers and/or directors, they are in a fiduciary relationship with Plaintiff and the other public stockholders of First Data and owe them a duty of care, loyalty, good faith, candor, and independence.