As filed with the Securities and Exchange Commission on July 31, 2001.
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIRST DATA CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 47-0731996
(State or other jurisdiction (I.R.S. employer identification number)
of incorporation or organization)
6200 SOUTH QUEBEC STREET
GREENWOOD VILLAGE, COLORADO 80111
(Address of principal executive offices) (Zip code)
FIRST DATA CORPORATION 1993 DIRECTOR'S STOCK OPTION PLAN
(Full title of the Plan)
MICHAEL T. WHEALY
FIRST DATA CORPORATION
10825 OLD MILL ROAD, M-10
OMAHA, NEBRASKA 68154
(402) 222-5172
(Name, address and telephone number,
including area code, of agent for service)
COPIES TO:
THOMAS A. ROSSI, ESQUIRE
STANLEY J. ANDERSEN, ESQUIRE
10825 OLD MILL ROAD, M-10
OMAHA, NEBRASKA 68164
CALCULATION OF REGISTRATION FEE
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER SECURITY OFFERING PRICE FEE
----------------------- ---------------- ----------------- ----------------- ------------
COMMON STOCK, 1,000,000 SHARES $69.725 $69,725,000 $17,431.25
PAR VALUE $.01 (1) (2)
(1) THERE IS ALSO BEING REGISTERED HEREUNDER SUCH ADDITIONAL UNDETERMINED
NUMBER OF SHARES OF COMMON STOCK AS MAY BE REQUIRED PURSUANT TO THE
EMPLOYEE BENEFIT PLAN IN THE EVENT OF A STOCK SPLIT, STOCK DIVIDEND, OR
OTHER SIMILAR EVENT.
(2) CALCULATED IN ACCORDANCE WITH RULE 457(h)(1) AND (c) UNDER THE
SECURITIES ACT OF 1933, SOLELY FOR THE PURPOSE OF COMPUTING THE
REGISTRATION FEE, BASED UPON THE AVERAGE OF THE HIGH AND LOW SALE
PRICES OF THE COMMON STOCK, $.01 PAR VALUE, OF FIRST DATA CORPORATION
ON THE NEW YORK STOCK EXCHANGE ON JULY 27, 2001.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents heretofore filed with the Securities and
Exchange Commission by First Data Corporation (the "Registrant") or the First
Data Corporation 1993 Director's Stock Option Plan (the "Plan") are
incorporated herein by reference:
(a) the Registrant's Annual Report on Form 10-K for the year ended
December 31, 2000 filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act");
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the Registrant
document referred to in (a) above.
(c) the description of the common stock, par value $.01 per share,
of the Registrant (the "Common Stock") contained in the Registrant's Report
on Form 8-A (File No. 1-11073) filed March 24, 1992, under the Exchange Act.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold are deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the respective dates of filing of such documents (such documents,
and the documents enumerated above, being hereinafter referred to as
"Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed
to be modified or superseded for purposes of this Registration Statement to
the extent that a statement contained herein or in any other subsequently
filed Incorporated Document modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
2
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain legal matters with respect to the offering of the securities
registered hereby have been passed upon by Stanley J. Andersen, Counsel of
the Registrant. Mr. Andersen is an officer and full-time employee of the
Registrant and the beneficial owner of shares of its Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
In accordance with the Delaware General Corporation Law ("DGCL"),
the Restated Certificate of Incorporation of the Company limits the personal
liability of the directors of the Company for violations of their fiduciary
duty. This provision eliminates each director's liability to the Company or
its stockholders for monetary damages except to the extent provided by the
DGCL (i) for any breach of the director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL providing for liability of directors for unlawful
payment of dividends or unlawful stock purchases or redemptions, or (iv) for
any transaction from which a director derived an improper benefit. The effect
of this provision is to eliminate the personal liability of directors for
monetary damages for actions involving a breach of their fiduciary duty of
care, including any such actions involving gross negligence.
The Restated Certificate of Incorporation of the Company also
provides for indemnification of the Company's officers and directors to the
fullest extent permitted by applicable law. Section 145 of the DGCL empowers
a Delaware corporation to indemnify any persons who are, or are threatened to
be made, parties to any threatened, pending or completed legal action, suit
or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of such corporation), by reason of
the fact that such person was an officer or director of such corporation, or
is or was serving at the request of such corporation as a director, officer,
employee or agent of another corporation or enterprise. The indemnity may
include expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such officer
or director acted in good faith and in a manner he reasonably believed to be
in or not opposed to the corporation's best interests, and, for criminal
proceedings, had no reasonable cause to believe his conduct was illegal. A
Delaware corporation may indemnify officers and directors in an action by or
in the right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation in the performance of
his duty. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation
must indemnify him against the expenses which such officer or director
actually and reasonably incurred. The By-laws of the Company provide officers
and directors similar rights to indemnification except that the By-laws (i)
only provide for indemnification if the person is defending an action and
(ii) do not provide for the indemnification of judgments, fines and amounts
paid in settlement in actions brought by or in the right of the corporation.
3
In addition, the Company maintains insurance policies which provide
coverage for its officers and directors in certain situations where the
Company cannot directly indemnify such officers or directors. The rights of
indemnification discussed above are not exclusive of any other rights which a
director or officer may acquire in the future.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit
Number Description of Exhibit
------- ----------------------
4.1 Registrant's Restated Certificate of Incorporation.
(Incorporated by reference to Exhibit 3 of the Registrant's
Quarterly Report on Form 10-Q for the three months ended
September 30, 1995 dated November 13, 1995, Commission File
No. 1-11073).
4.2 Registrant's By-laws. (Incorporated by reference to Exhibit 3
of the Registrant's Quarterly Report on Form 10-Q for the
three months ended September 30, 1998, dated November 16,
1998, Commission File No. 1-11073).
5 Opinion and Consent of Stanley J. Andersen, Esq.
15 Letter from Ernst & Young LLP regarding Unaudited Interim
Financial Information.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Stanley J. Andersen, Esq. (included in the opinion
of Mr. Andersen filed as Exhibit 5 hereto).
24 Power of Attorney (included on the signature page).
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
4
(i) To include any prospectus required by Section 10(a) (3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (1) (i) and (1) (ii) above do not apply if
the Registration Statement is on Form S-3, Form S-8 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein and the offering of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or controlling persons of
the Registrant pursuant to the foregoing provisions or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act, and
5
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on
July 31, 2001.
FIRST DATA CORPORATION
By:/s/ Henry C. Duques
-------------------------------
Henry C. Duques
Chairman of the Board
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears immediately below constitutes and appoints Michael T. Whealy, Thomas
A. Rossi and Stanley J. Andersen, and each or either of them, his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or the
substitutes or substitute of any of them, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Henry C. Duques Chairman of the Board and July 31, 2001
------------------------------------------ Chief Executive Officer
Henry C. Duques
7
/s/ Kimberly S. Patmore Chief Financial Officer July 31, 2001
------------------------------------------ (Principal Financial Officer)
Kimberly S. Patmore
/s/ Thomas L. Moore Vice President and Corporate Controller July 31, 2001
----------------------------------------- (Principal Accounting Officer)
Thomas L. Moore
/s/ Charles T. Fote Director July 31, 2001
-----------------------------------------
Charles T. Fote
/s/ Courtney F. Jones Director July 31, 2001
------------------------------------------
Courtney F. Jones
/s/ Robert J. Levenson Director July 31, 2001
------------------------------------------
Robert J. Levenson
/s/ James D. Robinson Director July 31, 2001
------------------------------------------
James D. Robinson III
/s/ Charles T. Russell Director July 31, 2001
-------------------------------------------
Charles T. Russell
/s/ Bernard L. Schwartz Director July 31, 2001
-------------------------------------------
Bernard L. Schwartz
/s/ Joan E. Spero Director July 31, 2001
-------------------------------------------
Joan E. Spero
8
/s/ Garen K. Staglin Director July 31, 2001
-------------------------------------------
Garen K. Staglin
/s/ Arthur F. Weinbach Director July 31, 2001
-------------------------------------------
Arthur F. Weinbach
9
INDEX
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
4.1 Registrant's Restated Certificate of Incorporation.
(Incorporated by reference to Exhibit 3 of the Registrant's
Quarterly Report on Form 10-Q for the three months ended
September 30, 1995 dated November 13, 1995, Commission File
No. 1-11073).
4.2 Registrant's By-laws. (Incorporated by reference to Exhibit 3
of the Registrant's Quarterly Report on Form 10-Q for the
three months ended September 30, 1998, dated November 16,
1998, Commission File No. 1-11073).
5 Opinion and Consent of Stanley J. Andersen, Esq.
15 Letter from Ernst & Young LLP regarding Unaudited Interim
Financial Information.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Stanley J. Andersen, Esq. (included in the opinion
of Mr. Andersen filed as Exhibit 5 hereto).
24 Power of Attorney (included on the signature page).
10