<TABLE>
As filed with the Securities and Exchange Commission on August 21, 1998
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
CONCORD EFS, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 04-2462252
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2525 Horizon Lake Drive, Suite 120
Memphis, Tennessee 38133
(901) 371-8000
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
Thomas J. Dowling,
Vice President and Controller of
Concord EFS, Inc.
2525 Horizon Lake Drive, Suite 120
Memphis, Tennessee 38133
(901) 371-8022
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Approximate date of commencement of proposed sale to the public: As soon as
practicable following the effective date of the Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act,
other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of each Proposed maximum Proposed maximum
class of securities Amount to be offering price aggregate Amount of
to be registered registered per unit offering price registration fee
- ----------------------- ------------ ---------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, $0.33 1/3 4,554,342 $23.50 $107,027,037 $31,573
par value per share
</TABLE>
Note: Based upon the average of the high and low prices reported on the NASDAQ
National Market System as of August 19, 1998 pursuant to the requirements of
Section 457(c).
<PAGE>
CONCORD EFS, INC.
4,554,342 Shares
of
Common Stock
----------------------------------------
This Prospectus relates to up to 4,554,342 shares of common stock, $0.33
1/3 par value per share (the "Company Common Stock"), of Concord EFS, Inc. (the
"Company"), which may be offered and sold from time to time hereafter by or for
the account of the Selling Shareholders, as defined herein, in ordinary
brokerage or principal transactions in the over-the-counter market. The Company
Common Stock is quoted on the National Association of Securities Dealers, Inc.
Automated Quotation System ("NASDAQ") National Market System under the symbol
"CEFT". On August 17, 1998, the closing sale price of the Company Common Stock
on the NASDAQ National Market System was $_______ per share.
- --------------------------------------------------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
- --------------------------------------------------------------------------------
The date of this Prospectus is August __, 1998.
2
<PAGE>
TABLE OF CONTENTS
TITLE PAGE
AVAILABLE INFORMATION....................................................... 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............................. 4
THE COMPANY................................................................. 5
SELLING SHAREHOLDERS........................................................ 5
LEGAL MATTERS............................................................... 8
EXPERTS..................................................................... 8
AVAILABLE INFORMATION
The Company is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, is required to file reports, proxy and information statements, and
other information with the Securities and Exchange Commission (the "SEC").
Copies of such reports, proxy and information statements, and other information
can be obtained, at prescribed rates, from the SEC by addressing written
requests for such copies to the Public Reference Section at the SEC at 450 Fifth
Street, N.W., Judiciary Plaza, Washington, D.C. 20549. In addition, such
reports, proxy and information statements, and other information can be
inspected and copied at the public reference facilities referred to above and at
the regional offices of the SEC at 7 World Trade Center, 13th Floor, New York,
New York 10048 and Northwestern Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661. The SEC also maintains a site on the World Wide
Web at http://www.sec.gov that contains reports, proxy and information
statements, and other information regarding registrants that file electronically
with the SEC. The Company Common Stock is quoted on the Nasdaq National Market
System under the symbol "CEFT," and reports, proxy and information statements,
and other information concerning the Company may be inspected at the offices of
the National Association of Securities Dealers, Inc. (the "NASD"), 1735 K
Street, N.W., Washington, D.C. 20006.
* * * * * * * * * *
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus, in connection
with the offer contained herein, and, if given or made, such information or
representations must not be relied upon. This Prospectus does not constitute an
offer to sell, or a solicitation of any offer to buy, nor shall there be a sale
of any securities offered hereby in any jurisdiction in which it is not lawful
or to any person to whom it is not lawful to make any such offer, solicitation
or sale. Neither delivery of this Prospectus nor any sale hereunder shall, under
any circumstances, create an implication that there has been no change in the
affairs of the Company since the date hereof. Statements made in this
Prospectus, unless the context indicates otherwise, are made as of the date of
this Prospectus.
3
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the Commission
are specifically incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998 and June 30, 1998;
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering being made hereby shall
be deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the respective dates of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein 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 Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon written or oral
request of such person, a copy of any and all of the documents incorporated by
reference in this Prospectus, except for the exhibits to such documents.
Requests should be directed to Thomas J. Dowling, Vice President and
Comptroller, Concord EFS, Inc., 2525 Horizon Lake Drive, Suite 120, Memphis,
Tennessee 38133 (901) 371-8000.
4
<PAGE>
THE COMPANY
The Company, through its subsidiaries, primarily provides electronic
transaction authorization, processing, settlement and funds transfer services in
selected markets within the United States. The Company's primary activity is
Card Services, which involves the provision of integrated electronic transaction
services for credit card, debit card and electronic benefits transfer ("EBT")
card transactions to supermarket chains, grocery stores, convenience store
merchants and other retailers. The Company also provides electronic payment and
banking facilities to the trucking industry for use at major truck stop chains
throughout the United States. In addition to maintaining a network of over 350
automated teller machines ("ATMs") at truck stops nationwide, the Company
provides fuel purchase cards, ATM bank cards and general banking services to
truck drivers. The Company offers trucking companies payroll deposit and cash
forwarding services, as well as real-time data compilation with respect to fuel
volume usage, fuel expenditures, vehicle and driver tracking and truck routine
maintenance schedules. In addition, the Company provides check verification
services to grocery and other retail merchants.
The Company's principal executive offices are located at 2525 Horizon Lake
Drive, Suite 120, Memphis, Tennessee 38133. Its telephone number is (901)
371-8000.
SELLING SHAREHOLDERS
The shares of Company Common Stock covered by this Prospectus were issued
by the Company to the shareholders listed herein (the "Selling Shareholders") in
connection with two separate acquisition transactions recently consummated, and
to the Selling Shareholders of one of the transactions in the form of a stock
dividend. The first transaction was the Company's acquisition of Pay Systems of
America, Inc. ("Pay Systems") on December 15, 1997, in which the Company issued
86,229 shares of Company Common to the shareholders of Pay Systems (the "Pay
Systems Shareholders"). All of the Selling Shareholders, other than Sam
Buchbinder, are Pay Systems Shareholders. After consummation of the Pay Systems
transaction, the Company declared a stock dividend which resulted in an
additional 43,113 shares of Company Common Stock being issued to the Pay System
Shareholders with respect to the shares of Company Common Stock they received in
the Pay Systems transaction. This Prospectus also covers the 43,115 shares of
Company Common Stock issued to the Pay Systems Shareholders in the form of the
stock dividend.
The second transaction was the Company's acquisition of Digital Merchant
Systems of Illinois, Inc., and American Bankcard International, Inc., from Sam
Buchbinder (the "Digital Acquisition"), which was consummated on June 30, 1998.
In the Digital Acquisition the Company issued 4,425,000 shares of Company Common
Stock to or for the benefit of Sam Buchbinder, who was the sole shareholder,
Chairman of the Board and Chief Executive Officer of the entities acquired.
442,500 of the shares of Company Common Stock issued in the Digital Acquisiton
transaction were deposited in escrow with Union Planters Bank, National
Association as "Exchange Agent" pursuant to an Escrow Agreement dated as of June
30, 1998. This Prospectus also covers all shares of Company Common Stock issued
to or for the benefit of Sam Buchbinder in the Digital Acquisition, including,
but not limited to, the 442,500 shares issued to the Exchange Agent.
5
<PAGE>
It is anticipated that the Selling Shareholders, or any one or more of
them, may from time to time offer and sell all or part of their shares of
Company Common Stock covered by this Prospectus in ordinary brokerage or
principal transactions in the over-the-counter market to market makers, to
broker-dealers acting as agent for a Selling Shareholder, or to broker-dealers
acting as agent for a customer, at prices prevailing at the time of sale, and in
private transactions at negotiated prices. In connection with sales of shares of
Company Common Stock in the over-the-counter market, there will be paid such
brokerage commissions or discounts as may be negotiated between the particular
Selling Shareholder and his or her broker, except that Selling Shareholders who
are also "affiliates" of the Company, within the meaning of the Securities Act,
may be limited to payment of normal brokerage commissions in connection with
such sales. Upon any sale of the shares of Company Common Stock offered hereby,
Selling Shareholders, brokers executing sales orders on their behalf, and
dealers to whom such persons or entities may sell, may, under certain
circumstances, be deemed to be "underwriters" within the meaning of the
Securities Act. As of the date of this Prospectus, no agreements, arrangements,
or understandings have been entered into between any Selling Shareholder and any
broker or dealer in connection with the sale of the shares of Company Common
Stock covered by this Prospectus.
Set out below is (i) the name and address of each Selling Shareholder, (ii)
the nature of any position, office or other material relationship which each
Selling Shareholder has had within the past three years with the Company or any
of its affiliates, (iii) the number of shares of Company Common Stock owned
beneficially by each Selling Shareholder on the date of this Prospectus, and
(iv) the number of shares to be offered for each Selling Shareholder's account.
NUMBER NUMBER
NAME OF SHARES OF SHARES
ADDRESS POSITION OWNED* OFFERED
- --------------------------- ---------------- --------- ---------
Michael J. Dobbs President 36,309 36,309
1321 Murfreesboro R., #100 Pay Systems
Nashville, TN 37217
Anne A. Dobbs 19,039 19,039
321 Murfreesboro R., #100
Nashville, TN 37217
Andrew M. Dobbs 3,336 3,336
1321 Murfreesboro R., #100
Nashville, TN 37217
6
<PAGE>
NUMBER NUMBER
NAME OF SHARES OF SHARES
ADDRESS POSITION OWNED* OFFERED
- --------------------------- ---------------- --------- ---------
Chatham J. Dobbs 3,336 3,336
1321 Murfreesboro R., #100
Nashville, TN 37217
Douglas C. Altenbern, Jr. 19,039 19,039
1321 Murfreesboro R., #100
Nashville, TN 37217
Douglas C. Altenbern, III 2,235 2,235
1321 Murfreesboro R., #100
Nashville, TN 37217
William C. Altenbern 2,223 2,223
1321 Murfreesboro R., #100
Nashville, TN 37217
John C. Altenbern 2,223 2,223
1321 Murfreesboro R., #100
Nashville, TN 37217
Darrington P. Altenbern 19,039 19,039
1321 Murfreesboro R., #100
Nashville, TN 37217
Darrington P. Atlenbern, Jr. 2,235 2,235
1321 Murfreesboro R., #100
Nashville, TN 37217
Chandler E. Altenbern 2,223 2,223
1321 Murfreesboro R., #100
Nashville, TN 37217
Adam M. Alternbern 2,223 2,223
1321 Murfreesboro R., #100
Nashville, TN 37217
Jean Pierce Field Services 2,268 2,268
1321 Murfreesboro Rd., #100 Mgr., Pay Systems
Nashville, TN 37217
7
<PAGE>
NUMBER NUMBER
NAME OF SHARES OF SHARES
ADDRESS POSITION OWNED* OFFERED
- --------------------------- ---------------- --------- ---------
Rebecca Murphy Operations Mgr., 6,807 6,807
1321 Murfreesboro Rd., #100 Pay Systems
Nashville, TN 37217
Joe B. Ray Director of Tax 6,807 6,807
1321 Murfreesboro Rd., #10 Pay Systems
Nashville, TN 37217
Sam Buchbinder Consultant, 4,425,200 4,425,000
9801 N. Keeler Avenue Concord EFS, Inc.
Skokie, IL 60606
*All Selling Shareholders, other than Sam Buchbinder, own less than one percent
(1%) of the outstanding shares of Company Common Stock. As of the date of this
Prospectus, Sam Buchbinder owned approximately 4.5% of the outstanding shares of
Company Common Stock.
LEGAL MATTERS
The legality of the Company Common Stock offered hereby will be passed upon
for the Company by Wyatt, Tarrant & Combs, Memphis, Tennessee.
EXPERTS
The consolidated financial statements of the Company incorporated by
reference in the Company's Annual Report (Form 10-K) and for the year ended
December 31, 1997, have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon authority of such firm as
experts in accounting and auditing.
8
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the fees and expenses in connection with the
issuance and distribution of the securities being registered. All of the amounts
shown are estimates, except for the registration fees. The Company will bear the
cost of such expenses.
Securities and Exchange Commission Fee $31,573
Accountants' Fees and Expenses $4,000
Legal Fees and Expenses $3,000
-------
Total $38,573
=======
Item 15. Indemnification of Directors and Officers.
Article Seventh of the Registrant's Restated Certificate of Incorporation
limits the liability of directors of the Registrant pursuant to the Delaware
General Corporation Law ("DGCL"). Under this Article, directors generally will
be personally liable to the Registrant or its shareholders for monetary damages
only for transactions involving conflicts of interest or from which a director
derives an improper personal benefit, intentional misconduct or violations of
law, and unlawful distributions.
The Bylaws of the Registrant require the Registrant to indemnify each
person who was or is made a party or is threatened to be made a party to any
action, suit or proceeding, whether civil, criminal, administrative or
investigative ("Proceeding"), by reason of the fact that he or she is or was a
director or officer of the Registrant, or is or was serving in such capacity
with another entity at the request of the Registrant, for the costs of such
Proceeding to the fullest extent authorized by Delaware law. If the Proceeding
was initiated by the officer or director, however, indemnification is permitted
only if the Proceeding was authorized by the Board of Directors. The costs
indemnified include all expenses, liability and loss reasonably incurred or
suffered by the director or officer in connection with his or her action on
behalf of the Registrant.
The Bylaws of the Registrant further provide for the advancement of
expenses incurred by an officer or director, and reimbursable under the Bylaws,
only upon delivery to the Registrant of an agreement, by or on behalf of such
director or officer, to repay all amounts advanced if it is ultimately
determined that such director or officer is not entitled to indemnification. If
a claim is not paid in full by the Registrant within twenty (20) days after a
written claim has been received, the director or officer making the claim may
bring suit against the Registrant to recover any unpaid amount. If the director
or officer is successful, in whole or in part, he or she will be entitled to be
paid the expense of prosecuting such claim. Although it is a defense to an
action against the Registrant by a director or officer that he or she has not
met the standards of conduct which make it permissible under Delaware law for
the Registrant to indemnify, the Registrant has the burden of proving this
defense.
i
<PAGE>
The circumstances under which Delaware law requires or permits a
corporation to indemnify its directors, officers, employees and/or agents are
set forth at Section 145, et seq. of the DGCL. Generally, under Section 145 et
seq. of the DGCL, a corporation may indemnify an individual made a party to a
proceeding because he is or was a director against liability incurred in the
proceeding if: [1] he conducted himself in good faith; and [2] he reasonably
believed: [a] in the case of conduct in his official capacity with the
corporation that his conduct was in its best interests; and [b] in all other
cases, that his conduct was at least not opposed to its best interests; and [3]
in the case of any criminal proceeding, he had no reasonable cause to believe
his conduct was unlawful.
A corporation may not indemnify a director: [1] in connection with a
proceeding by or in the right of the corporation in which the director was
adjudged liable to the corporation; or [2] in connection with any other
proceeding charging improper personal benefit to him, whether or not involving
action in his official capacity, in which he was adjudged liable on the basis
that personal benefit was improperly received by him. Indemnification permitted
in connection with a proceeding by or in the right of the corporation is limited
to reasonable expenses incurred in connection with the proceeding.
In addition, the Registrant maintains directors' and officers' liability
insurance covering certain liabilities which may be incurred by the directors
and officers of the Registrant in connection with the performance of their
duties.
Item 16. Exhibits.
The following exhibits are filed as a part of this Registration Statement:
4(a) Restated Certificate of Incorporation of the Registrant
4(b) Certificate of Amendment to Certificate of Incorporation of
the Registrant dated May 30, 1997.
4(c) Certificate of Amendment to Certificate of Incorporation of
the Registrant dated May 29, 1998.
4(d) Bylaws of the Registrant as amended are incorporated by
reference to Exhibit 3(b) to the Registrant's report on Form
10-Q for the quarter ended March 31, 1992.
5 Opinion of Wyatt, Tarrant & Combs as to the legality of the
Common Stock.
23(a) Consent of Ernst & Young LLP
23(b) Consent of Wyatt, Tarrant & Combs (included in Exhibit 5).
24 Power of Attorney (included on signature page of this
Registration Statement).
ii
<PAGE>
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
To include any prospectus required by Section 10(a)(3) of the Act;
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;
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(A)[1] and 1(A)[2] do not apply if 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 Exchange Act that are incorporated by
reference in the Registration Statement.
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.
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 this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers or controlling persons of the Company pursuant
to the Articles of Incorporation or Bylaws of the Company or the Delaware
General Corporation Law or otherwise, the Company has been informed that in the
opinion of the Commission such indemnification is against public policy as
iii
<PAGE>
expressed in the Act and is therefore unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company 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.
iv
<PAGE>
SIGNATURES AND POWER OF ATTORNEY
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Memphis, State of Tennessee on August 14, 1998.
CONCORD EFS, INC.
/s/ Dan M. Palmer
-----------------
Dan M. Palmer,
Chairman of the Board and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas J. Dowling and William E. Lucado, and each
of them, his or her true and lawful attorney-in-fact and agent, with full power
of substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully as to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute, may lawfully do and cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signatures Title Date
---------- ----- ----
/s/ Dan M. Palmer Chairman of the Board, August 14, 1998
- ----------------- Chief Executive Officer,
Dan M. Palmer Director (Principal Executive Officer)
/s/ Edward A. Labry, III President, Director August 14, 1998
- ------------------------
Edward A. Labry, III
/s/ Thomas A. Dowling Vice President & Controller August 14, 1998
- --------------------- (Principal Financial Officer)
Thomas A. Dowling
<PAGE>
Signatures Title Date
---------- ----- ----
/s/ Douglas C. Altenbern Director August 14, 1998
- ------------------------
Douglas C. Altenbern
/s/ David C. Andersen Director August 14, 1998
- ---------------------
David C. Andersen
/s/ J. Richard Buchignani Director August 14, 1998
- -------------------------
J. Richard Buchignani
Director August 14, 1998
- -----------------
Richard M. Harter
Director August 14, 1998
- -----------
Joyce Kelso
/s/ Richard P. Kiphart Director August 14, 1998
- ----------------------
Richard P. Kiphart
/s/ Jerry D. Mooney Director August 14, 1998
- -------------------
Jerry D. Mooney
/s/ Paul L. Whittington Director August 14, 1998
- -----------------------
Paul L. Whittington
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number
Page Description of Exhibit
- ------- ----------------------
4(a) Restated Certificate of Incorporation of the Registrant
4(b) Certificate of Amendment to Certificate of Incorporated of the
Registrant dated May 30, 1997.
4(c) Certificate of Amendment to Certificate of Incorporation of the
Registrant dated May 29, 1998.
5 Opinion of Wyatt, Tarrant & Combs as to the legality of the Common
Stock.
23(a) Consent of Ernst & Young LLP
23(b) Consent of Wyatt, Tarrant & Combs (included in Exhibit 5).
24 Power of Attorney (included on signature page of this Registration
Statement).
<PAGE>
EXHIBIT 4(a)
RESTATED CERTIFICATE OF INCORPORATION
OF
CONCORD EFS, INC.
CONCORD EFS, INC., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware (the "Corporation"),
hereby certifies that (i) the original Certificate of Incorporation of the
Corporation was filed by the Corporation with the Secretary of State of Delaware
on December 14, 1989, (ii) the name under which the Corporation was originally
incorporated was CONCORD COMPUTING CORPORATION; (iii) this Restated Certificate
of Incorporation was duly adopted in accordance with the provisions of Section
245 of the Delaware General Corporation Law; (iv) there is no discrepancy
between the provisions of the Corporation's Certificate of Incorporation, as
heretofore amended, and this Restated Certificate of Incorporation; and (v) this
Restated Certificate of Incorporation restates and integrates, but does not
further amend, the Corporation's Certificate of Incorporation, as heretofore
amended, to read in its entirety as follows:
FIRST. The name of the Corporation is CONCORD EFS, INC.
SECOND. The address of the Corporation's registered office in the State of
Delaware is 1013 Center Road, in the City of Wilmington, County of New Castle.
The name of the Corporation's registered agent at such address is Corporation
Service Company.
THIRD. The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH. The total number of shares of all classes of stock that the
Corporation shall have authority to issue is 80,000,000 shares of Common Stock,
and the par value of each of such shares is $0.33 1/3.
FIFTH. The name and mailing address of the sole incorporator is as
follows:
NAME MAILING ADDRESS
Daniel A. Milewich c/o Bingham, Dana & Gould
150 Federal Street
Boston, Massachusetts 02110
SIXTH. The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation and for defining
and regulating the powers of the Corporation and its directors and shareholders
and are in furtherance and not in limitation of the powers conferred upon the
Corporation by statute:
<PAGE>
(a) The by-laws of the Corporation may fix and alter, or provide the manner
for fixing and altering, the number of directors constituting the whole Board of
Directors. In case of any vacancy on the Board or any increase in the number of
directors constituting the whole Board, the vacancies shall be filled by the
directors or by the stockholders at the time having voting power, as may be
prescribed in the by-laws. The election of directors need not be by written
ballot.
(b) The Board of Directors shall have the power and authority:
(1) to adopt, amend or repeal by-laws of the Corporation, subject only to
such limitation, if any, as may be from time to time imposed by law or by the
by-laws; and
(2) to the full extent permitted or not prohibited by law, and without the
consent of or other action by the stockholders, to authorize or create
mortgages, pledges or other liens or encumbrances upon any or all of the assets,
real, personal or mixed, and franchises of the Corporation, including
after-acquired property, and to exercise all of the powers of the Corporation in
connection therewith; and
(3) subject to any provision of the by-laws, to determine whether, to what
extent, at what times and places and under what conditions and regulations the
accounts, books and papers of the Corporation (other than the stock ledger), or
any of them, shall be open to the inspection of the stockholders, and no
stockholder shall have any right to inspect any account, book or paper of the
Corporation except as conferred by statute or authorized by the by-laws or by
the Board of Directors.
SEVENTH. No director of th Corporation shall be personally liable to the
Corporation or to any of its stockholders for monetary damages for breach of
fiduciary duty as a director, notwithstanding any provision of law imposing such
liability; provided, however, that to the extent required from time to time by
applicable law, this Article Seventh shall not eliminate or limit the liability
of a director, to the extent such liability is provided by applicable law, (i)
for any breach of the director's duty of loyalty to the Corporation 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
Title 8 of the Delaware Code, or (iv) for any transactions from which the
director derived an improper personal benefit. No amendment to or repeal of this
Article Seventh shall apply to or have any effect on the liability or alleged
liability of any director for or with respect to any acts or omissions of such
director occurring prior to the effective date of such amendment or repeal.
<PAGE>
IN WITNESS WHEREOF, Concord EFS, Inc. has caused this Restated Certificate
of Incorporation to be executed by Richard M. Harter, its duly authorized
Secretary, as of the 4th day of September, 1998.
CONCORD EFS, INC.
By: /s/ Richard M. Harter, Secretary
Richard M. Harter, Secretary
<PAGE>
EXHIBIT 4(b)
CONCORD EFS, INC.
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
Concord EFS, Inc., a Delaware corporation (the "Corporation"), does hereby
certify, pursuant to Section 242 of the General Corporation Law of the State of
Delaware, that:
FIRST: Pursuant to Section 141 of the General Corporation Law of the State
of Delaware the Board of Directors of the Corporation at a meeting duly
called and held on March 6, 1997, resolutions were duly adopted proposing
an Amendment to the Certificate of Incorporation of the Corporation
changing Article Fourth of the Certificate of Incorporation of the
Corporation and submitting such proposal to the shareholders, as follows:
RESOLVED: That it is deemed advisable and in the best interest of the
Corporation to amend Article Fourth of its Certificate of Incorporation to
read as follows:
FOURTH: The total number of shares of all classes of stock that the
Corporation shall have authority to issue is 100,000,000 shares of Common
Stock, and the par value of each such share is $0.33 1/3.
RESOLVED: That, subject to stockholder approval as provided below, the
Corporation be and it hereby is authorized and directed to amend its
Certificate of Incorporation as set forth in the foregoing resolution, that
the proposed amendment to the Corporation's Certificate of Incorporation
shall be submitted to the stockholders of the Corporation for their
consideration and approval, and that, upon receipt of such stockholder
approval, the appropriate officers of the Corporation be and they hereby
are authorized and directed to execute and deliver any and all documents or
certificates deemed necessary to effectuate the proposed amendment outlined
above, including a Certificate of Amendment to Certificate of Incorporation
for filing with the Delaware Secretary of State.
SECOND: The proposed amendment to the Corporation's Certificate of
Incorporation has been approved and adopted by a majority of the
stockholders of the Corporation, at the Annual meeting held on May 15,
1997.
Accordingly, Article Fourth of the Certificate of Incorporation of the
Corporation is hereby amended to read as follows:
<PAGE>
FOURTH: The total number of shares of all classes of stock that the
Corporation shall have authority to issue is 100,000,000 shares of Common
Stock, and the par value of each such share is $0.33 1/3.
IN WITNESS WHEREOF, Concord EFS, Inc. has caused this Certificate of
Amendment to its Certificate of Incorporation to be executed by Dan M. Palmer,
its Chairman, as of the 30th day of May, 1997.
CONCORD EFS, INC.
By: /S/ Dan M. Palmer
---------------------
Name:Dan M. Palmer
Title:Chairman
<PAGE>
EXHIBIT 4(c)
CONCORD EFS, INC.
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
Concord EFS, Inc., a Delaware corporation (the "Corporation"), does hereby
certify, pursuant to Section 242 of the General Corporation Law of the State of
Delaware, that:
FIRST: Pursuant to Section 141 of the General Corporation Law of the State
of Delaware the Board of Directors of the Corporation at a meeting duly
called and held on February 25, 1998, resolutions were duly adopted
proposing an Amendment to the Certificate of Incorporation of the
Corporation changing Article Fourth of the Certificate of Incorporation of
the Corporation and submitting such proposal to the shareholders, as
follows:
RESOLVED: That it is deemed advisable and in the best interest of the
Corporation to amend Article Fourth of its Certificate of Incorporation to
read as follows:
FOURTH: The total number of shares of all classes of stock that the
Corporation shall have authority to issue is 200,000,000 shares of Common
Stock, and the par value of each such share is $0.33 1/3.
RESOLVED: That, subject to stockholder approval as provided below, the
Corporation be and it hereby is authorized and directed to amend its
Certificate of Incorporation as set forth in the foregoing resolution, that
the proposed amendment to the Corporation's Certificate of Incorporation
shall be submitted to the stockholders of the Corporation for their
consideration and approval, and that, upon receipt of such stockholder
approval, the appropriate officers of the Corporation be and they hereby
are authorized and directed to execute and deliver any and all documents or
certificates deemed necessary to effectuate the proposed amendment outlined
above, including a Certificate of Amendment to Certificate of Incorporation
for filing with the Delaware Secretary of State.
SECOND: The proposed amendment to the Corporation's Certificate of
Incorporation has been approved and adopted by a majority of the
stockholders of the Corporation, at the Annual meeting held on May 14,
1998.
Accordingly, Article Fourth of the Certificate of Incorporation of the
Corporation is hereby amended to read as follows:
<PAGE>
FOURTH: The total number of shares of all classes of stock that the
Corporation shall have authority to issue is 200,000,000 shares of Common Stock,
and the par value of each such share is $0.33 1/3.
IN WITNESS WHEREOF, Concord EFS, Inc. has caused this Certificate of
Amendment to its Certificate of Incorporation to be executed by Dan M. Plamer,
its Chairman, as of the 29th day of May, 1998.
CONCORD EFS, INC.
By: /S/ Dan M. Palmer
----------------------
Name: Dan Palmer
Title: Chairman
<PAGE>
EXHIBIT 5
Wyatt, Tarrant & Combs Letterhead
August 20, 1998
Concord EFS, Inc.
2525 Horizon Lake Drive, Suite 120
Memphis, Tennessee 38133
Re: Registration Statement on Form S-3 covering Common Stock of Concord
EFS, Inc. issued in recent transactions
Ladies and Gentlemen:
We have acted as counsel to Concord EFS, Inc., (the "Company") in
connection with a Registration Statement on Form S-3 relating to the
registration of 4,554,342 shares of Company common stock, $0.33 1/3 cents per
share par value ("Company Common Stock") with the Securities and Exchange
Commission ("Commission"). The shares of Company Common Stock being registered
have been issued by the Company to shareholders of companies recently acquired
by the Company.
We have examined such documents and have reviewed such questions of law
as we have considered necessary and appropriate for the purposes of our opinions
set forth below. In rendering our opinions, we have assumed the authenticity of
all documents submitted to us as originals, the genuineness of all signatures
and the conformity to authentic originals of all documents submitted to us as
copies.
Based on the foregoing, we are of the opinion that as of the date
hereof:
[1] The shares of Company Common Stock to be registered pursuant to the
Registration Statement and to be sold by or on behalf of the Selling
Shareholders (as such term is defined in the Registration Statement), are
vailidly issued, fully paid and non-assessable.
We hereby consent to your filing of this opinion as an exhibit to the
Registration Statement, and to the reference to our firm under the caption
"Legal Matters" contained in the Prospectus included therein. In giving this
consent, we do not thereby admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933 or the
rules and regulations of the Commission promulgated thereunder. The opinions
expressed herein are expressed as of the date hereof and we disclaim any
undertaking to advise you of the facts stated or assumed herein or any
subsequent changes in applicable law.
Very truly yours,
WYATT, TARRANT & COMBS
----------------------
/S/ Wyatt, Tarrant & Combs
<PAGE>
EXHIBIT 23(a)
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3, No. 333-____) and related Prospectus of
Concord EFS, Inc. for the registration of 4,554,342 shares of its common stock
and to the incorporation by reference therein of our report dated February 5,
1998, with respect to the consolidated financial statements of Concord EFS, Inc.
incorporated by reference in its Annual Report (Form 10-K) for the year ended
December 31, 1997, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Memphis, Tennessee
August 18, 1998
<PAGE>
