<PAGE>
AS FILED ELECTRONICALLY WITH
THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 31, 1998
Registration No. 333-
=================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ASSOCIATES FIRST CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
06-0876639
(I.R.S. Employer Identification No.)
250 East Carpenter Freeway
Irving, Texas
(Address of principal executive offices)
75062-2729
(Zip Code)
ASSOCIATES DEFERRED COMPENSATION PLAN
(Full title of the Plan)
Timothy M. Hayes, Esq.
Associates First Capital Corporation
250 East Carpenter Freeway
Irving, Texas
75062-2729
972-652-4000
(Name, address and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------
<TABLE>
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------
TITLE OF SECURITIES AMOUNT TO BE PROPOSED PROPOSED AMOUNT OF
TO BE REGISTERED REGISTERED MAXIMUM MAXIMUM REGISTRATION
OFFERING AGGREGATE FEE
PRICE OFFERING
PER SHARE PRICE <F1>
</TABLE>
- ---------------------------------------------------------------------
<TABLE>
<S> <C> <C> <C> <C>
Deferred Compensation $25,000,000 100% $25,000,000 $7,375
Obligations <F2>
- ---------------------------------------------------------------------
<FN>
<F1> Estimated solely for the purpose of determining the registration fee.
<F2> The Deferred Compensation Obligations are unsecured obligations of
Associates First Capital Corporation to pay deferred compensation in the
future in accordance with the terms of the Associates Deferred Compensation
Plan.
</FN>
</TABLE>
<PAGE>
ASSOCIATES DEFERRED COMPENSATION PLAN
______________________
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed or to be filed with the Securities and
Exchange Commission are incorporated by reference in this Registration
Statement:
(a) The latest annual report of Associates First Capital Corporation
(the "Company" or "Associates") filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (the "1934 Act") which contains, either
directly or indirectly by incorporation by reference, certified financial
statements for Associates' latest fiscal year for which such statements have
been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
1934 Act since the end of the fiscal year covered by the annual report
referred to in paragraph (a) above.
(c) The description of Associates Class A Common Stock contained in
registration statement no. 333-817, as amended, filed by Associates under the
Securities Act of 1933 (the "1933 Act").
All documents subsequently filed by Associates pursuant to Sections 13(a),
13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing such documents.
Item 4. Description of Securities.
Certain employees of Associates First Capital Corporation (the "Company")
and its subsidiaries may elect to defer part of their cash compensation
through the nonqualified Associates Deferred Compensation Plan (the "Plan").
When an employee so elects, the Company retains the amount deferred and
credits the value of such amount by book entry to an account maintained for
the employee by the Company. The Company then assumes a general, unsecured
obligation (collectively, the "Obligations") to pay the employee (a
"Participant") in the future the deferred amount, as adjusted during the
deferral period in accordance with applicable investment measures as selected
by the Participant.
The Plan is unfunded, and payments of the Obligations are made from the
general assets of the Company. Each Participant is a general unsecured
creditor of the Company with a claim against the Company for the amount he or
she has deferred, as adjusted during the deferral period in accordance with
applicable investment measures as selected by the Participant. The
Obligations rank pari passu with other unsecured and unsubordinated
indebtedness of the Company from time to time outstanding.
Participant accounts are valued at least quarterly to reflect the
performance during the quarter (or other valuation period, if shorter),
whether positive or negative, of selected investment measures. The Company in
its sole discretion determines the investment measures available under the
Plan. Each Participant may elect to allocate his or her account among the
available measures and may change the allocation only prospectively. Account
balances are adjusted as though actually invested in the investments used as
measures, but no investment of funds outside the Company occurs.
Participants may not assign or transfer the Obligations, other than by
designating a beneficiary or beneficiaries to receive payment if a Participant
dies before receiving full payment of the amount credited to his or her
account. Any attempt by a Participant to assign or transfer an Obligation may
result, in the Committee's sole discretion, in a forfeiture of the
Participant's claim to the Obligation.
Payment of Obligations generally are made at the time and in the manner
elected by Participants when they elect to defer awards under the Plan.
Participants may elect to receive the value of their accounts during
employment in a lump sum on a specified day or in quarterly, semi-annual or
annual installment payments over a period of not more than 15 years, or in a
combination of lump sum and installment payments. Each year when a
Participant elects whether to defer the following year's award, that
Participant may delay further the elected time and form of any payments
scheduled to be made or begin in any year following the year after the year in
which the election is made (e.g., a December 1996 election may delay further
payments scheduled to begin in 1998 or later). No change may be made to
accelerate any payments, and no change may be made to delay any payments
scheduled to be made or begin in the current year. A Participant may elect
that payments made upon his or her death, disability or retirement from the
Company will be made in a lump sum within 30 days of such event, in a lump sum
on or about January 31 of the calendar year following such event, or in
quarterly, semi-annual or annual installments over a period of not more than
15 years, beginning the year after the calendar year following the date of
disability or retirement, or in a combination of lump sum and installment
payments. If a Participant terminates employment with the Company other than
by reason of death, disability or retirement, the value of such Participant's
account ordinarily will be distributed within 60 days of his or her
termination date, unless the Committee in its sole discretion delays payment
until the time otherwise elected by the Participant. The Company may also
accelerate payment of any Obligation to any Participant if the Committee in
its sole discretion determines that changes in the federal tax laws or
applicable accounting rules make continued deferral undesirable or if a
Participant suffers a financial hardship for reasons outside the Participant's
control.
The Obligations are not convertible into securities of the Company, and
Participants have no voting rights with respect to the Obligations. The
Company is not prohibited from securing its other indebtedness with the
Obligations. No trustee has been appointed with authority to take action with
respect to the Obligations and each Participant will be responsible for acting
independently with respect to the Obligations, including without limitation
any notices, requests for consents, waivers, or amendments pertaining to the
Obligations, enforcement of covenants and action upon a default.
The Company's Nonqualified Plan Committee has full discretionary
authority to interpret the Plan, to establish rules and regulations relating
to the Plan, and to make all other determinations and take all other actions
necessary or appropriate for the proper administration of the Plan. The
Nonqualified Plan Committee may amend the Plan, except to the extent that an
amendment would have a material adverse effect on the Company or significantly
increase the level of benefits payable under the Plan; but no such amendment
may adversely affect a Participant's rights with respect to the Obligations
without prior consent by the Participant. The Board of Directors may
terminate the Plan at any time and from time to time, but may not adversely
affect a Participant's rights with respect to the Obligations without prior
consent by the Participant.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware (the
"Delaware Law") 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
or she 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 or her conduct was illegal. A Delaware corporation may indemnify officers
and directors against expenses (including attorney's fees) in connection with
the defense or settlement of 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. 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 or her against the expenses which such officer or director
actually and reasonably incurred.
In accordance with the Delaware Law, the Restated Certificate of
Incorporation of the Company contains a provision to limit 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 (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 Delaware Law
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 personal 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.
Pursuant to underwriting agreements filed as exhibits to registration
statements relating to underwritten offerings of securities, the underwriters
parties thereto have agreed to indemnify each officer and director of
Associates and each person, if any, who controls Associates within the meaning
of the 1933 Act, against certain liabilities, including liabilities under the
1933 Act.
The directors and officers of the Company currently are covered by
directors' and officers' insurance policies relating to Ford Motor Company
and its subsidiaries. Ford Motor Company is in the process of completing
a tax-free spin-off to its stockholders of its interest in the Company.
After the spin-off, the directors and officers of the Company will be covered
by directors' and officers' insurance policies maintained by the Company.
The Restated Certificate of Incorporation of the Company provides for
indemnification of the officers and directors of the Company to the full
extent permitted by applicable law.
Item 8. Exhibits.
Exhibit
Number Exhibits
*4 - Associates Deferred Compensation Plan
*5 - Opinion of Frederic C. Liskow, an Assistant General
Counsel and Vice President of Associates First Capital
Corporation, with respect to the legality of the
securities being registered hereunder.
*23 - Consent of Coopers & Lybrand L.L.P.
*24 - Powers of Attorney.
* Filed with this Registration Statement
Item 9. Undertakings.
(a) 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:
(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;
(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;
(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.
(b) 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 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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 therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and 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 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.
SIGNATURES
The Registrant. 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 Irving, State of Texas, on this
31st day of March, 1998.
ASSOCIATES FIRST CAPITAL CORPORATION
By: /s/ C. D. Longenecker
---------------------------------
C. D. Longenecker
Title: Executive Vice President
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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ----------------- ------------------------------------------
<C> <S> <C>
KEITH W. HUGHES* Chairman of the Board,
(Keith W. Hughes) Principal Executive Officer and Director
ROY A. GUTHRIE* Senior Executive Vice President,
(Roy A. Guthrie) Chief Financial Officer and Director
</TABLE>
March 31, 1998
<TABLE>
<C> <S> <C>
JOHN F. STILLO* Senior Vice President, Comptroller
(John F. Stillo) Principal Financial Officer
HAROLD D. MARSHALL* Director
(Harold D. Marshall)
J. CARTER BACOT* Director
(J. Carter Bacot)
JOHN M. DEVINE* Director
(John M. Devine)
KENNETH WHIPPLE* Director
(Kenneth Whipple)
H. JAMES TOFFEY, JR.* Director
(H. James Toffey, Jr.)
</TABLE>
- ---------------------
*By signing his name hereto, C. D. Longenecker signs this document on behalf
of each of the persons indicated above pursuant to powers of attorney duly
executed by such persons.
By: /s/ C. D. LONGENECKER
____________________
(Attorney-in-Fact)<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
Exhibit
Number Exhibit
- ------- ---------------------------------------------------------
<S> <C>
*4 - Associates Deferred Compensation Plan
*5 - Opinion of Frederic C. Liskow, Assistant General Counsel and Vice
President of Associates First Capital Corporation, with respect
to the legality of the securities being registered hereunder.
*23 - Consent of Coopers & Lybrand L.L.P.
*24 - Powers of Attorney.
</TABLE>
* Filed Herewith
<PAGE>
ASSOCIATES DEFERRED COMPENSATION PLAN
(Effective January 1, 1998)
<PAGE>
ASSOCIATES DEFERRED COMPENSATION PLAN
(Effective January 1, 1998)
Article 1. Merger, Restatement, Purpose and Duration
1.1. Merger of Predecessor Plans and Restatement. Effective January
1, 1998, Associates First Capital Corporation, a Delaware corporation, hereby
(a) merges each of The Associates Corporate Annual Performance Plan, The
Associates Long-Term Performance Plan, the Associates Corporation of North
America Deferred Compensation Unit Plan Agreement, the Associates Corporation
of North America Executive Incentive Plan and the Associates First Capital
Corporation Agreement to Defer Phantom Stock Appreciation into The Associates
Executive Deferred Salary Plan as set forth in this document, (b) amends and
restates in its entirety The Associates Executive Deferred Salary Plan as set
forth in this document, and (c) renames The Associates Executive Deferred
Salary Plan as the Associates Deferred Compensation Plan.
1.2. Purpose of the Plan. The Plan, as set forth in this document, is
an unfunded plan maintained primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
and is intended to qualify as a "top hat" plan within the meaning of
Department of Labor Regulation Section 2520.104-23. The Plan is also intended
to link Participants' interest with the interests of stockholders of the
Company by allowing certain amounts deferred under the Plan to be treated as
though such amounts were invested in Class A Common Stock of the Company and
to allow continued deferral of Compensation previously deferred under the
merged plans described in Section 1.1.
1.3. Duration of the Plan. The Plan shall remain in effect
indefinitely, subject to the right of the Board of Directors to suspend or
terminate the Plan at any time pursuant to Article 8.
Article 2. Definitions
2.1. General. Whenever used in the Plan, the following terms shall
have the meanings set forth below, and when any such meaning is intended, the
initial letter of the word shall be capitalized. Except where the context
otherwise indicates, any masculine term used herein shall include the
feminine, the plural shall include the singular, and the singular shall
include the plural.
2.2. "Account" means the unfunded bookkeeping record established and
maintained by the Company as provided in Article 5 to reflect amounts deferred
pursuant to Article 4 on behalf of a Participant. Each Account shall include
any sub-accounts established for recordkeeping purposes thereunder.
2.3. "Board" or "Board of Directors" means the board of directors of
the Company.
2.4. "Class A Common Stock" means the Class A Common Stock, par value
$.01 per share, of the Company.
2.5. "Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor thereto.
2.6. "Committee" means the committee designated pursuant to Section 7.1
to administer the Plan.
2.7. "Company" means Associates First Capital Corporation, a Delaware
corporation, and any successor thereto as provided in Section 9.7.
2.8. "Compensation" means any amount, including without limitation base
salary and bonuses, payable by the Company or any of its Subsidiaries to a
Participant as remuneration for service to the Company or any Subsidiary.
2.9. "Deemed Investment Measure" means any of the deemed investment
measures selected and approved by the Committee from time to time, among which
a Participant may elect to have deferred amounts deemed invested pursuant to
Article 5.
2.10. "Effective Date" means January 1, 1998, as provided in Section
1.1.
2.11. "Eligible Employee" means any individual who is an active employee
of the Company or any Subsidiary and who is designated by the
Committee as eligible to participate in the Plan.
2.12. "ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor thereto.
2.13. "Fair Market Value" means, as applicable, either (a) the closing
sale price at which a Share was sold regular way on the relevant date on the
principal securities exchange on which such a Share was traded on such date
or, if there was no sale on the relevant date, then on the last previous date
on which there was such a sale, or (b) the net asset value of a Share as
quoted by the issuer on the relevant date or, if no such quote was made on the
relevant date, then on the last previous date on which such a quote was made.
2.14. "Investment Shares" means deemed shares of the Deemed Investment
Measures other than the Class A Common Stock and Prime Rate investment
measures.
2.15. "Participant" means an Eligible Employee who is participating in
the Plan in accordance with the provisions of Article 4 or a former Eligible
Employee on whose behalf an Account is maintained under the Plan and who has
not yet received payment of the total value credited to his or her Account.
2.16. "Plan" means the Associates Deferred Compensation Plan.
2.17. "Prime Rate" means the rate determined as provided in operating
procedures adopted by the Committee.
2.18. "Shares" means either or both of Investment Shares or shares of
the Class A Common Stock, as the context indicates.
2.19. "Subsidiary" means any corporation, partnership, joint venture or
other entity in which the Company has a direct or indirect majority voting
interest (including all divisions, affiliates and related entities).
2.20. "Valuation Date" means each December 31, the last day of each
calendar quarter and such other dates as the Committee may determine.
Article 3. Eligibility and Participation
3.1. Eligibility. Eligibility to participate in the Plan shall be
limited to those "management or highly compensated employees" (within the
meaning of ERISA and the regulations thereunder) of the Company and its
Subsidiaries who are designated from time to time by the Committee.
3.2. Participation. Notwithstanding any other provision of the Plan to
the contrary, if the Committee determines that any Participant may not qualify
as a "management or highly compensated employee" (within the meaning of ERISA
and the regulations thereunder), the Committee may determine, in its sole
discretion, that such Participant shall cease to be an Eligible Employee.
Upon such determination, the Company shall make an immediate lump sum
distribution to the Participant equal to the amount credited to the
Participant's Account. Upon such distribution no benefit shall thereafter be
payable under the Plan either to the Participant or to any beneficiary of the
Participant, and all of the Participant's elections as to the time and manner
of distribution of the Participant's Account shall be deemed to be canceled.
Article 4. Deferral of Compensation
4.1. Deferral Elections. On or before December 31 of each year, each
individual selected by the Committee pursuant to Article 3 may elect to defer
receipt of up to 35 percent (35%) of such individual's base salary and up to
100 percent (100%) of such individual's bonus or bonuses payable by the
Company or any of its Subsidiaries to such individual for the following
calendar year. Any such deferral election shall be made by giving written
notice (on the appropriate form as provided by the Company) to the Company no
later than December 31 of each year as to (a) the percentage or dollar amount
of such individual's Compensation for the following calendar year to be
deferred, and (b) the method of distribution pursuant to Article 6 desired for
the deferrals. Any such deferral election shall be irrevocable as of December
31 for the following calendar year. Any such deferral election shall apply
only to Compensation for the calendar year immediately following the calendar
year in which the notice of deferral election is delivered to the Company. A
new deferral election must be made for each subsequent calendar year in order
to defer any Compensation payable for such year.
4.2. Deferral Elections by New Participants. Notwithstanding the
foregoing, any individual who was not eligible to elect to defer Compensation
on or before December 31 of a calendar year, but whom the Committee on or
after January 1 of the following calendar year and before October 1 of such
year specifies as eligible to defer for that year, may elect to defer receipt
of (a) up to 35 percent (35%) of such individual's base salary payable for the
remainder of the calendar year after such new deferral election and (b) up to
100 percent (100%) of such individual's bonus or bonuses payable by the
Company or any of its Subsidiaries to such individual for the calendar year in
which such individual is first specified as eligible to participate in the
Plan. Any such deferral election may be made within 30 days of the date such
individual is first designated as eligible to defer receipt of Compensation
and shall be irrevocable once made for the remainder of the calendar year in
which the election is made. Any such deferral election shall otherwise comply
with the requirements for deferral elections specified in Section 4.1.
Article 5. Deferral Accounts
5.1. Deferral Accounts. The Company or its delegee shall establish and
maintain an Account for each Participant, which may be sub-divided for
recordkeeping purposes. Amounts deferred on behalf of a Participant shall be
credited, as of the date such amounts would otherwise have been payable to
such Participant, to the Participant's Account. The value of each
Participant's Account shall be adjusted for deemed earnings, gains, losses and
accretions in accordance with this Article 5. Each Participant shall at all
times be fully vested in his or her Account.
5.2. Deemed Investment of Accounts. Amounts credited to a
Participant's Account shall be deemed to be invested among the Deemed
Investment Measures as directed by the Participant pursuant to Section 5.3.
Under no circumstances shall any deemed investment, whether in Investment
Shares or Class A Common Stock, convey any voting or other ownership rights in
Shares, represent actual Shares or, in the case of deemed investments in Class
A Common Stock, give any Participant any rights as a stockholder in the
Company.
5.3. Participant Direction among Deemed Investment Measures. Each
Participant may direct allocation of amounts credited to such Participant's
Account to any one, or among more than one, of the Deemed Investment Measures.
A Participant may direct an initial allocation or change an existing
allocation by notifying the Company or its delegee in such manner as the
Company may permit. A Participant's allocation, once made, shall remain in
effect unless and until a change in allocation is received in accordance with
the foregoing. If a Participant fails to direct allocation of any portion of
the amounts credited to such Participant's Account, that undirected portion
shall be allocated to the Prime Rate Deemed Investment Measure and credited
with interest at the Prime Rate pursuant to Section 5.5 until such time as the
Participant directs otherwise.
5.4. Deemed Investments other than Prime Rate.
(a) Newly deferred amounts credited to a Participant's Account
shall be deemed to be invested in the number of Shares, including fractional
Shares if applicable, determined by dividing (1) the newly credited amount
allocated to each Deemed Investment Measure by (2) the Fair Market Value of a
Share of the Deemed Investment Measure on the day the deferred amount is
credited to the Participant's Account.
(b) The total amount credited to a Participant's Account
(determined as of the most recent Valuation Date pursuant to Section 5.6),
excluding any amount allocated to the Prime Rate Deemed Investment Measure,
shall be deemed to be invested in the number of Shares, including fractional
Shares if applicable, determined by dividing (1) the credited amount allocated
to each Deemed Investment Measure by (2) the Fair Market Value of a Share of
the Deemed Investment Measure on the most recent Valuation Date.
(c) The value of dividends paid and other distributions made with
respect to Investment Shares or Class A Common Stock, as applicable, shall be
credited to a Participant's Account on the payment date for such dividends or
other distributions based on the number of whole and fractional Shares deemed
credited to such Participant's Account as of the record date for such
dividends or other distributions. Cash dividend equivalents shall be deemed
to be immediately reinvested in additional Shares based on the Fair Market
Value of such Shares on such dividend or distribution payment date. Stock
dividends, stock distributions of any class of stock other than the Shares,
property dividends or property distributions shall be valued by the Committee
as of the payment date thereof and be deemed immediately reinvested in
additional Shares based on the Fair Market Value of such Shares on such
dividend or distribution payment date.
(d) In the event of (i) any stock dividend, stock split,
combination of shares, recapitalization or other change in capital structure,
(ii) any merger, consolidation, spin-off, spin-out, split-off, split-up,
reorganization, partial or complete liquidation or other distribution of
assets, issuance of rights or warrants to purchase securities, or (iii) any
other corporate transaction or event having an effect similar to any of the
foregoing, an adjustment may be made in the number of Shares in which each
Account is deemed to be invested, as may be determined to be appropriate and
equitable by the Committee, in its sole discretion, to reflect such event.
5.5. Deemed Investment at Prime Rate. Any portion of a Participant's
Account allocated to the Prime Rate Deemed Investment Measure shall be
credited with interest for each valuation period at the Prime Rate in effect
from time to time during such valuation period, taking into account for
crediting purposes any changes in the Prime Rate during the period.
5.6. Valuation of Accounts. Each Participant's Account shall be valued
as of each Valuation Date. As of each Valuation Date, each Participant's
Account shall be deemed to have a value determined by (a) multiplying the
number of Investment Shares and shares of Class A Common Stock deemed credited
to such Account as of the Valuation Date by the Fair Market Value of such
Investment Shares and Class A Common Stock, as applicable, on the Valuation
Date, plus (b) the value determined as of the immediately preceding Valuation
Date of the portion of such Participant's Account allocated for that valuation
period to the Prime Rate Deemed Investment Measure, plus (c) crediting the
portion of such Participant's Account allocated for that valuation period to
the Prime Rate Deemed Investment Measure with interest at the Prime Rate in
effect from time to time during the period beginning on the first day of the
applicable valuation period (or, if any amount directed to be deemed invested
at the Prime Rate is credited to the Participant's Account after the first day
of the valuation period, beginning on the crediting date with respect to such
amount) and ending on the Valuation Date, taking into account for crediting
purposes any changes in the Prime Rate during the valuation period.
Article 6. Distributions
6.1. General. Except as otherwise provided in this Article 6, the
value of a Participant's Account shall be payable in cash at such time(s) and
in such amounts as the Participant may elect (on the appropriate form as
provided by the Company) pursuant to this Article 6. Subject to the
provisions of Section 6.8, any Participant who makes an election to defer
future Compensation pursuant to Article 4 may change or revoke a previous
distribution election by filing with the Company a new distribution election
(on the appropriate form as provided by the Company) in conjunction with the
deferral election. Any such new distribution election shall automatically
revoke all prior distribution elections by such Participant; provided,
however, that pursuant to Section 6.8, no distribution election may accelerate
payment of any portion of the value of the Participant's Account to a current
calendar year or to the immediately following calendar year, and any
distribution election that would so accelerate payment shall be invalid to the
extent of such attempted acceleration. Any distribution election will be
effective only if it is signed by the Participant and received by the Company
prior to the Participant's death. A Participant shall continue to have the
right to direct allocation of the amount credited to such Participant's
Account among the Deemed Investment Measures, and the value of such
Participant's Account shall continue to be adjusted for deemed earnings,
gains, losses and accretions, until the final distribution is made.
6.2. Valuation of Distributions. For distribution purposes, each
Participant's Account shall be valued as of the most recent Valuation Date
immediately preceding the date of distribution. If and to the extent that a
Participant elects installment payments, the amount of the first payment shall
be a fraction of the value of such Participant's Account subject to
installment payments as of the most recent Valuation Date preceding such first
payment, the numerator of which is one and the denominator of which is the
total number of installments elected. The amount of each subsequent payment
shall be a fraction of the remaining value of the Participant's Account
subject to installment payments as of the most recent Valuation Date preceding
such subsequent payment, the numerator of which is one and the denominator of
which is the number of installments remaining (including the payment then
being made).
6.3. Distributions during Employment. A Participant may elect to
receive distribution of the value of the Participant's Account in cash during
the Participant's employment with the Company or its Subsidiaries (a)in a lump
sum paid on or about the last day of such calendar month as the Participant
specifies on the distribution form, (b) partially in a lump sum paid on or
about the last day of a specified month, with the balance paid either
in a lump sum paid on or about the last day of a different specified month or
in quarterly, semi-annual or annual installments over a period of not more
than 15 years, beginning on or about the last day of January, April, July or
October of a specified year, or (c) in quarterly, semi-annual or annual
installments over a period of not more than 15 years, beginning on or about
the last day of January, April, July or October of a specified year.
6.4. Distributions upon Termination of Employment. If a Participant
terminates employment with the Company and its Subsidiaries before receiving
complete distribution of the value of the Participant's Account, the Company
shall distribute in cash the entire value of the Participant's Account in one
lump sum within 60 days of the termination of employment, unless the Committee
expressly directs otherwise. The foregoing sentence shall not apply if a
Participant's termination of employment with the Company and its Subsidiaries
is due to voluntary retirement under the Company's Pension Plan or due to
disability (as determined under the Company's long-term disability plan as
then in effect), in either of which case the value of the Participant's
Account shall be distributed as provided in Section 6.5, or due to the
Participant's death, in which case the value of the Participant's Account
shall be distributed as provided in Section 6.6.
6.5. Distributions upon Retirement or Disability. If a Participant's
termination of employment with the Company and its Subsidiaries is due to
voluntary retirement under the Company's Pension Plan or due to disability (as
determined under the Company's long-term disability plan as then in effect),
the value of the Participant's Account shall be distributed in cash as elected
by the Participant (on the appropriate form as provided by the Company)or, if
the Participant has not made an election, in one lump sum on January 31 of the
calendar year (or as soon thereafter as practicable) following the calendar
year in which such retirement or disability begins. The value of the
Participant's Account shall be determined pursuant to Section 6.2. A
Participant may elect to have the value of the Participant's Account
distributed (a) in a lump sum within 30 days of the date the Participant's
retirement or disability begins, (b) in a lump sum on or about January 31 of
next calendar year after the calendar year in which the Participant's
retirement or disability begins, (c) in quarterly, semi-annual or annual
installments over a period of not more than 15 years, beginning on or about
the last day of January, April, July or October of the next calendar year
after the calendar year in which the Participant's retirement or disability
begins, or (d) partially in quarterly, semi-annual or annual installments over
a period of not more than 15 years, beginning on or about the last day of
January, April, July or October of the next calendar year after the calendar
year in which the Participant's retirement or disability begins, with the
remaining balance of the Account payable in a lump sum on or about January 31
of the next calendar year after the calendar year in which the last
installment is paid.
6.6. Distributions upon Death. If a Participant dies before receiving
complete distribution of the value of the Participant's Account, the value of
the Participant's Account shall be distributed in cash as elected by the
Participant (on the appropriate form as provided by the Company) or, if the
Participant has not made an election, in one lump sum on January 31 of the
year (or as soon thereafter as practicable) following the year of death to any
beneficiary or beneficiaries designated or deemed designated by the
Participant pursuant to Section 9.6. The value of the Participant's Account
shall be determined pursuant to Section 6.2 as of the date of the
Participant's death or as of such other date as the Committee in its sole
discretion may determine. A Participant may elect to have the value of the
Participant's Account distributed (a) in a lump sum within 30 days of the date
of the Participant's death, (b) in a lump sum on or about January 31 of next
calendar year after the calendar year in which the Participant's death occurs,
(c) in quarterly, semi-annual or annual installments over a period of not more
than 15 years, beginning on or about the last day of January, April, July or
October of the next calendar year after the calendar year in which the
Participant's death occurs, or (d) partially in quarterly, semi-annual or
annual installments over a period of not more than 15 years, beginning on or
about the last day of January, April, July or October of the next calendar
year after the calendar year in which the Participant's death occurs, with the
remaining balance of the Account payable in a lump sum on or about January 31
of the next calendar year after the calendar year in which the last
installment is paid.
6.7. Emergency Distributions. At the written request of a Participant
(or beneficiary, if after a Participant's death), the Committee, in its sole
discretion, may authorize the cessation of the Participant's deferrals under
the Plan, if applicable, and, if necessary, distribution of all or a portion
of the value of the Participant's Account, or accelerate payment of any
installments, upon a showing of unforeseeable emergency by the Participant or
beneficiary. For purposes of this paragraph, "unforeseeable emergency" shall
mean an unanticipated emergency that is caused by an event beyond the control
of the Participant or beneficiary and that would result in severe financial
hardship to the Participant or beneficiary if accelerated distribution were
not permitted. Notwithstanding the foregoing, under no circumstances shall
any acceleration of distributions from the Plan be made under this Section 6.7
to the extent the unforeseeable emergency is or may be relieved (a) through
reimbursement or compensation by insurance or otherwise, (b) by liquidation of
the Participant's assets, to the extent the liquidation of such assets would
not itself cause severe financial hardship, and/or (c) by cessation of
deferrals under the Plan. Accelerated distribution because of an
unforeseeable emergency shall be permitted only to the extent reasonably
necessary to satisfy the emergency need.
6.8. Acceleration of Distributions. In no event may a Participant
elect to accelerate payment of any portion of the value of the Participant's
Account to a current calendar year or to the immediately following calendar
year. The Company may distribute all or any portion of the value of a
Participant's Account at any time or times (a) if the Committee concludes, in
its sole discretion, that events such as changes in the federal tax laws or
applicable accounting principles or practices have rendered continued deferral
of the value of the Participant's Account undesirable either for the Company
or the Participant, or (b) in accordance with the terms of the Participant's
employment agreement, if any, with the Company.
Article 7. Administration
7.1. Designation of Committee. The Plan shall be administered by the
Company's Nonqualified Plan Committee, the members of which are appointed by
the Board, unless the Board specifically appoints a different committee to
administer the Plan. The Committee shall be the "administrator" under the
Plan for purposes of ERISA. The Committee may from time to time delegate all
or any part of its authority under the Plan; and, to the extent of any such
delegation, references in the Plan (other than in Section 8.1) to the
Committee are deemed to be references to such delegate.
7.2. Authority of Committee. Except as limited by law or by the
Certificate of Incorporation or Bylaws of the Company, and subject to the
provisions of the Plan, the Committee shall have such powers as may be
necessary to discharge its duties hereunder, including, without limitation,
the sole and absolute discretion: (a) to interpret the provisions of the Plan
(including, without limitation, by supplying omissions from, correcting
deficiencies in, or resolving inconsistencies or ambiguities in, the language
of the Plan); (b) to make factual findings with respect to any issue arising
under the Plan; (c) to determine the rights and status under the Plan of
Participants and other persons; and (d) to decide disputes arising under the
Plan and to make determinations and findings (including factual findings) with
respect to the benefits payable thereunder and the persons entitled thereto as
may be required for the purposes of the Plan. In furtherance thereof, but
without limiting the foregoing, the Committee is hereby granted the following
specific authorities, which it shall discharge in its sole and absolute
discretion in accordance with the terms of the Plan (as interpreted, to the
extent necessary, by the Committee): (w) to select and approve the Deemed
Investment Measures available under the Plan; (x) to resolve all questions
(including factual questions) arising under the Plan as to any individual's
entitlement to become a Participant; (y) to determine the amount of benefits,
if any, payable with respect to any person under the Plan (including, to the
extent necessary, making factual finds with respect thereto); and (z) to
conduct the claims procedure specified in Section 7.4. The Committee may,
from time to time, employ agents and delegate to them such administrative
duties as it sees fit, and may from time to time consult with legal counsel
who may be counsel to the Company. No member of the Committee shall act in
respect of his or her own Account.
7.3. Decisions of the Committee. All determinations, interpretations,
decisions or other actions made or taken by the Committee pursuant to the
provisions of the Plan and all related orders and resolutions of the Board
with respect to the Plan shall be final, conclusive and binding for all
purposes and upon all persons, including without limitation the Company, its
Subsidiaries, its stockholders, its employees (including Eligible Employees),
Participants, and Participants' estates and beneficiaries. All decisions of
the Committee shall be made by the vote of the majority, including actions in
writing taken without a meeting. All elections, notices and directions under
the Plan by a Participant shall be made on such forms as the Committee shall
prescribe.
7.4. Claims. The Committee shall provide to any Participant or
beneficiary whose claim for benefits under the Plan has been fully or
partially denied a written notice setting forth (a) the specific reasons for
such denial, (b) a designation of any additional material or information
required, and (c) an explanation of the Plan's claim review procedure. Such
notice shall state that the Participant or beneficiary is entitled to request
a review in writing, by the Committee, of the decision denying the claim. The
claim shall be reviewed by the Committee who may, but need not, grant the
claimant a hearing. On review, the claimant may have legal representation,
examine pertinent documents and submit issues and comments in writing. The
decision on review shall be made within 120 days following the request, shall
be provided in writing to the claimant and shall be final and binding on all
parties concerned.
Article 8. Amendment and Termination
8.1. Amendment and Termination. Subject to Section 8.2, the Committee
may at any time, and from time to time, in its sole discretion alter or amend
the Plan in whole or in part for any reason or for no reason; provided,
however, that the Committee may not make any alteration or amendment that
would have a material adverse effect on the Company or significantly increase
the level of benefits payable under the Plan. Subject to Section 8.2, the
Board may at any time, and from time to time, in its sole discretion suspend
or terminate the Plan in whole or in part for any reason or for no reason.
8.2. Participant Accounts. No alteration or amendment of
the Plan shall, without the written consent of any affected Participant,
adversely affect in any material way a Participant's rights to or interest in
the value of the Participant's Account as of the date of the alteration or
amendment. In the case of a termination of the Plan, notwithstanding any
other provisions of the Plan to the contrary, the Company shall distribute the
value of each Participant's Account Balance, valued as of the date of
termination in accordance with Section 6.2, to such Participant in a lump sum
payment of cash not later than sixty (60) days after the date of
termination.
Article 9. Miscellaneous
9.1. No Rights to Employment. Nothing in the Plan shall interfere with
or limit in any way the right of the Company or any of its Subsidiaries to
terminate the employment of any Eligible Employee, whether or not a
Participant, at any time, with or without reason; nor shall anything in the
Plan be deemed to create or confer upon any employee (including any Eligible
Employee), whether or not a Participant, or other individual, any rights to
employment of any kind or nature whatsoever for any period of time or at any
particular rate of compensation, including, without limitation, any right to
continue in the employ of the Company and its Subsidiaries.
9.2. No Rights to Participation. No employee, whether or not an
Eligible Employee or a Participant, or other individual shall have any right
to be selected to participate in the Plan or, having been so selected, to be
selected to continue to make deferrals under the Plan; nor shall anything in
the Plan be deemed to create or confer upon any employee, whether or not an
Eligible Employee or a Participant, or other individual any such right.
9.3. No Assignment or Transfer. A Participant's rights and interest
under the Plan may not be subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, attachment or garnishment,
except pursuant to a valid designation of beneficiary pursuant to Section 9.6,
and any attempted anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment or garnishment shall be null and void and
shall extinguish, in the Committee's discretion, the Company's obligation
under the Plan to pay the portion of the value of the Participant's Account
subject to such attempted anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment or garnishment.
9.4. Funding. The Plan shall be unfunded, both for Code purposes and
for purposes of Title I of ERISA, and any amounts deferred hereunder shall be
held as part of the general assets of the Company. Notwithstanding anything
to the contrary indicated herein, the Company is authorized, but shall not be
required, to establish any special or separate fund, or to make any other
segregation of assets, to assure payment of the value of the Accounts. The
Plan shall constitute a mere promise by the Company to make payments in the
future. Participants shall have no claim to any specific asset of the Company
or any of its Subsidiaries and shall have the status of general unsecured
creditors of the Company and its Subsidiaries with respect to any claims to
benefits hereunder.
9.5. Withholding. The Company shall have the power and the right to
deduct or withhold from any amount to be paid to any Participant or
beneficiary hereunder, or require such a Participant or beneficiary to remit
to the Company, an amount sufficient to satisfy any federal, state and/or
local taxes, domestic or foreign, required by applicable law or regulation to
be withheld with respect to any taxable event arising as a result of the Plan.
9.6. Designation of Beneficiary. A Participant may designate a
beneficiary or beneficiaries (who may be named contingently or successively)
who, in the event of the Participant's death prior to complete distribution of
the value of the Participant's Account, shall receive payment of any portion
of the value of the Participant's Account not already distributed. Any such
beneficiary designation shall be made by the Participant in writing (on the
appropriate form as provided by the Company) and shall automatically revoke
all prior designations by such Participant. The Participant may, at any time
and from time to time, change or revoke such designation. A beneficiary
designation, or revocation of a prior beneficiary designation, will be
effective only if it is signed by the Participant and received by the Company
prior to the Participant's death. If the Participant does not designate a
beneficiary or all beneficiaries die prior to receiving any payment of the
value of the Participant's Account, the Participant's estate shall be deemed
to be the Participant's beneficiary. If a beneficiary dies after receiving at
least partial payment of the value of the Participant's Account, any amounts
remaining to be paid shall be paid to the beneficiary's estate.
9.7. Successors. All obligations of the Company under the Plan shall
be binding on any successor to the Company, whether the existence of such
successor is the result of a direct or indirect purchase, merger,
consolidation, or otherwise, of all or substantially all of the business
and/or assets of the Company.
9.8. Severability. In the event any provision of the Plan shall be
held illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of the Plan, and the Plan shall be construed and
enforced as though the illegal or invalid provision had not been included.
9.9. Notices. All notices to the Company hereunder shall be directed
to the attention of the Secretary of the Company and shall be deemed duly
effective when hand-delivered or dispatched by electronic facsimile
transmission (with receipt thereof confirmed), or five business days after
having been mailed by United States registered or certified mail, return
receipt requested, postage prepaid, or three business days after having been
sent by a nationally recognized overnight courier service such as Federal
Express, UPS, or Purolator, addressed to the Company at its principal
executive offices, except that notices of changes of address shall be
effective only upon receipt.
9.10. Governing Law. To the extent not preempted by United States
federal law or other comparable law, the Plan and all agreements hereunder
shall be construed in accordance with and governed by the laws of the State of
Texas.
IN WITNESS WHEREOF, this document is executed as of the 1st day of
January, 1998.
ASSOCIATES FIRST CAPITAL CORPORATION
By: /s/ Michael E. McGill
Name: Michael E. McGill
Title: Executive Vice President
<PAGE>
<PAGE>
Exhibit 5
March 31, 1998
Associates First Capital Corporation
250 E. Carpenter Freeway
Irving, Texas 75062-2729
Ladies and Gentlemen:
I am Assistant General Counsel of Associates First Capital
Corporation, a Delaware corporation (the "Company"). In that
capacity, I have reviewed the Registration Statement on Form S-8 (the
"Registration Statement") that is being filed by the Company with the
Securities and Exchange Commission (the "Commission") pursuant to the
Securities Act of 1933, as amended (the "Securities Act), with
respect to the Deferred Compensation Obligations of the Company,
relating to the Associates Deferred Compensation Plan (the "Plan").
I am familiar with the Restated Certificate of Incorporation and the
By-Laws of the Company and with its affairs, including the action taken
by the Company in connection with the Plan. I also have examined
such other documents and instruments and have made such further
investigation as I have deemed necessary or appropriate in connection
with this opinion.
Based upon the foregoing, it is my opinion that:
(1) The Company is duly incorporated and validly existing as a
corporation under the laws of the State of Delaware.
(2) All necessary corporate proceedings have been taken to
authorize the issuance of the Deferred Compensation Obligations being
registered under the Registration Statement, and all such Deferred
Compensation Obligations, when issued and sold in accordance with the
Plan, will be legally issued, fully paid and non-assessable when the
Registration Statement shall have become effective.
I hereby consent to the use of this opinion as Exhibit 5 to the
Registration Statement. In giving this consent, I do not admit that
I am in the category of persons whose consent is required under
Section 7 of the Securities Act or the Rules and Regulations of the
Commission issued thereunder.
Very truly yours,
/s/ Frederic C. Liskow
Frederic C. Liskow
Assistant General Counsel
<PAGE>
Exhibit 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of Associates First Capital Corporation on Form S-8
(File No. 333-) of our report dated January 20, 1998, on our
audits of the consolidated financial statements of Associates
First Capital Corporation as of December 31, 1997 and 1996, and
for the years ended December 31, 1997, 1996 and 1995, which
report is included in the Associates First Capital Corporation's
1997 Annual Report on Form 10-K.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Dallas, Texas
March 31, 1998
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the
undersigned, being an
officer or director, or both, of ASSOCIATES FIRST CAPITAL
CORPORATION, a
Delaware corporation (the "Company"), do hereby make, constitute
and appoint
Roy A. Guthrie, Timothy M. Hayes, and Chester D. Longenecker, and
each of
them, attorneys-in-fact and agents of the undersigned with full
power and
authority of substitution and resubstitution, in any and all
capacities, to
execute for and on behalf of the undersigned the Registration
Statement on
Form S-8 relating to the shares of Class A Common Stock of the
Company and/or
obligations of the Company with values based on the value of
Class A Common
Stock and certain other indexes, and any and all pre-effective
and
post-effective amendments or supplements to the foregoing
Registration
Statement and any other documents and instruments incidental
thereto, and to
deliver and file the same, with all exhibits thereto, and all
documents and
instruments in connection therewith, with the Securities and
Exchange
Commission, and with each exchange on which any class of
securities of the
Company is registered, 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 that said attorneys-in-fact and agents, and each of
them, deem
advisable or necessary to enable the Company to effectuate the
intents and
purposes hereof, and the undersigned hereby fully ratify and
confirm all that
said attorneys-in-fact and agents, or any of them, or their
respective
substitutes, if any, shall do or cause to be done by virtue
hereof.
IN WITNESS HEREOF, each of the undersigned has subscribed
his or her
name, this 12th Day of February, 1998.
<TABLE>
<C> <C>
/s/ J. Carter Bacot /s/ Harold D. Marshall
- -----------------------------------
- ---------------------------------
Name: J. Carter Bacot Name: Harold D.
Marshall
Title: Director Title: Director
/s/ John M. Devine /s/ Keith W. Hughes
- -----------------------------------
- ----------------------------------
Name: John M. Devine Name: Keith W. Hughes
Title: Director Title: Chairman of the
Board, Chief
Executive Officer and
Director
/s/ Kenneth Whipple /s/ Roy A. Guthrie
- ----------------------------------
- ----------------------------------
Name: Kenneth Whipple Name: Roy A. Guthrie
Title: Director Title: Senior Executive
Vice
President, Chief
Financial
Officer and Director
/s/ H. James Toffey, Jr. /s/ John F. Stillo
- ---------------------------------
- ----------------------------------
Name: H. James Toffey, Jr. Name: John F. Stillo
Title: Director Title: Senior Vice
President,
Comptroller, and
Principal
Accounting Officer
</TABLE>
