<PAGE>
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIRST DATA CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 47-0731996
(State or other jurisdiction (I.R.S. employer identification number)
of incorporation or organization)
401 HACKENSACK AVENUE
7TH FLOOR
HACKENSACK, NEW JERSEY 07601
(Address of principal executive offices) (Zip code)
FIRST DATA CORPORATION SUPPLEMENTAL SAVINGS PLAN
(Full title of the Plan)
HENRY C. DUQUES
FIRST DATA CORPORATION
401 HACKENSACK AVENUE, 7TH FLOOR
HACKENSACK, NEW JERSEY 07601
(201) 525-4700
(Name, address and telephone number,
including area code, of agent for service)
COPIES TO:
DAVID P. BAILIS, ESQUIRE
PATRICIA A. WINCHELL, ESQUIRE
2121 NORTH 117TH AVENUE
OMAHA, NEBRASKA 68164
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES /(1)/ TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED /(2)/ PER SECURITY OFFERING PRICE FEE
<S> <C> <C> <C> <C>
--------------------------------------------------------------------------------------------------------
DEFERRED COMPENSATION OBLIGATIONS $10,000,000 100% $10,000,000 $3,448.28
=========================================================================================================
</TABLE>
(1) The Deferred Compensation obligations are unsecured obligations of
First Data Corporation to pay deferred compensation in the future in accordance
with the terms of the First Data Corporation Supplemental Savings Plan.
(2) Estimated solely for the purpose of determining the registration fee.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
-----------------------------------------------
The following documents heretofore filed with the Securities and
Exchange Commission by First Data Corporation are incorporated herein by
reference:
(a) the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1995;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Registrant document
referred to in (a) above.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold are deemed to be incorporated by reference into
this Registration Statement and to be a part hereof from the respective dates of
filing of such documents (such documents, and the documents enumerated above,
being herein after referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
-------------------------
Under the First Data Corporation Supplemental Savings Plan (the
"Plan"), the Company will provide eligible employees of the Company and its
affiliates the opportunity to elect to defer a specified percentage of their
cash compensation. The obligations of the Company ultimately to pay such
deferred amounts in accordance with the Plan (the "Obligations") will be
unsecured general obligations of the Company, and will rank equally with other
unsecured and unsubordinated indebtedness of the Company from time to time
outstanding. Because the Company is a holding company, the right of the
Company, hence the right of creditors of the Company (including participants in
the Plan) to participate in a distribution of the assets of a subsidiary upon
its liquidation or reorganization or otherwise, necessarily is subject to the
prior claims of creditors of the subsidiary, except to the extent that claims of
the Company itself as a creditor may be recognized.
<PAGE>
The amount of compensation to be deferred by each participant will be
determined in accordance with the Plan based on elections by the participant.
Each Obligation generally will be payable on a date selected by the participant
in accordance with the terms of the Plan. The Obligations initially accrue
interest at the rate of 8% a year. The rate may be changed by the Company. The
Obligations will be denominated and payable in United States dollars.
A participant's right or the right of any other person to the
Obligations cannot be assigned, alienated, sold, garnished, transferred, pledged
or encumbered except by a written designation of beneficiary under the Plan.
The Obligations are not subject to redemption, in whole or in part,
prior to the payment dates specified by the Plan. The Company reserves the
right to amend or terminate the Plan at any time, except that no such amendment
may be made without the participant's written consent if it would reduce the
vested balance of the participant's deferred account or delay the participant's
ability to receive his or her vested account balance.
The Obligations are not convertible into another security of the
Company. The Obligations will not have the benefit of a negative pledge or any
other affirmative or negative covenant on the part of the Company. No trustee
has been appointed having the authority to take action with respect to the
Obligations, and each participant will be responsible for acting independently
with respect to, among other things, the giving of notices, responding to any
request for consent, waivers, or amendments pertaining to the Obligations,
enforcing covenants, and taking action upon a default.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
--------------------------------------
Certain legal matters with respect to the validity of the Obligations
issuable under the Plan hereby have been passed upon by Patricia A. Winchell,
Senior Counsel of the Registrant. Ms. Winchell is paid a salary by, and is a
participant in various employee benefit plans offered to employees of the
Registrant. Ms. Winchell holds options to purchase shares of First Data Common
Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
Section 145 of the Delaware General Corporation Law ("DGCL") empowers
a Delaware corporation to indemnify any persons who are, or are threatened to be
made, parties to any threatened, pending or completed legal action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation), by reason of the fact that
such person was an officer or director of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided that such officer or director acted in good faith
and in a manner
<PAGE>
he reasonably believed to be in or not opposed to the corporation's best
interests, and, for criminal proceedings, had no reasonable cause to believe his
conduct was illegal. A Delaware corporation may indemnify officers and directors
in an action by or in the right of the corporation under the same conditions,
except that no indemnification is permitted without judicial approval if the
officer or director is adjudged to be liable to the corporation in the
performance of his duty. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such officer or
director actually and reasonably incurred.
In accordance with the DGCL, 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 to the extent provided by the DGCL (i) for any breach of
the director's duty of loyalty to the Company or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL providing for
liability of directors for unlawful payment of dividends or unlawful stock
purchases or redemptions, or (iv) for any transaction from which a director
derived an improper benefit. The effect of this provision is to eliminate the
personal liability of directors for monetary damages for actions involving a
breach of their fiduciary duty of care, including any such actions involving
gross negligence.
The Restated Certificate of Incorporation and the By-laws of the
Company provide for indemnification of the Company's officers and directors to
the fullest extent permitted by applicable law, except that the By-laws provide
that the Company is required to indemnify an officer or director in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Company. In addition, the Company maintains
insurance policies which provide coverage for its officers and directors in
certain situations where the Company cannot directly indemnify such officers or
directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
-----------------------------------
Not applicable.
ITEM 8. EXHIBITS
--------
Exhibit
Number Description of Exhibit
- ------ ----------------------
4 First Data Corporation Supplemental Savings Plan.
5 Opinion and Consent of Patricia A. Winchell, Esq.
15 Letter from Ernst & Young LLP regarding Unaudited Interim Financial
Information.
<PAGE>
23.1 Consent of Ernst & Young LLP with respect to the Registrant's
financial information.
23.2 Consent of Deloitte & Touche LLP with respect to the Registrant's
financial information.
23.3 Consent of Patricia A. Winchell, Esq. (included in the opinion of Ms.
Winchell filed as Exhibit 5 hereto).
24 Power of Attorney (included on the signature page).
ITEM 9. UNDERTAKINGS
------------
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a) (3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
Provided, however, that paragraphs (1) (i) and (1) (ii) above do not apply if
- -------- -------
the Registration Statement is on Form S-3, Form S-8 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of
<PAGE>
the securities being registered which remain unsold at the termination of
the offering.
The undesigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein and the offering of such securities at
the time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the foregoing provisions or otherwise, the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act, and 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on July 24, 1996.
FIRST DATA CORPORATION
By: /s/ Henry C. Duques
----------------------------------
Henry C. Duques
Chairman of the Board
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
immediately below constitutes and appoints David P. Bailis, Patricia A. Winchell
and Thomas A. Rossi, and each or either of them, his true and lawful attorney-
in-fact and agent, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or the substitutes or substitute of any of them, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------------------------- ----------------------------- -------------
<S> <C> <C>
/s/ Henry C. Duques Chairman of the Board and July 24, 1996
- --------------------------- Chief Executive Officer
Henry C. Duques
/s/ Lee Adrean Chief Financial Officer July 24, 1996
- --------------------------- (Principal Financial Officer)
Lee Adrean
/s/ Richard Macchia Senior Vice President and July 24, 1996
- --------------------------- Principal Accounting Officer
Richard Macchia
/s/ Ben Burdetsky Director July 24, 1996
- ---------------------------
Ben Burdetsky
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
- --------------------------- --------------------- ---------------
<S> <C> <C>
/s/ Courtney F. Jones Director July 24, 1996
- ---------------------------
Courtney F. Jones
/s/ Robert J. Levenson Director July 24, 1996
- ---------------------------
Robert J. Levenson
/s/ James D. Robinson III Director July 24, 1996
- ---------------------------
James D. Robinson III
/s/ Charles T. Russell Director July 24, 1996
- ---------------------------
Charles T. Russell
/s/ Bernard L. Schwartz Director July 24, 1996
- ---------------------------
Bernard L. Schwartz
/s/ Garen K. Staglin Director July 24, 1996
- ---------------------------
Garen K. Staglin
</TABLE>
<PAGE>
INDEX
-----
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT PAGE #
- --------- ---------------------- ------
4 First Data Corporation Supplemental Savings Plan.
5 Opinion and Consent of Patricia A. Winchell, Esq. __
15 Letter from Ernst & Young LLP regarding Unaudited Interim __
financial Information.
23.1 Consent of Ernst & Young LLP with respect to the __
Registrant's financial information.
23.2 Consent of Deloitte & Touche LLP with respect to the
Registrant's financial information.
23.3 Consent of Patricia A. Winchell, Esq. (included in
the opinion of Ms. Winchell filed as Exhibit 5 hereto).
24 Power of Attorney (included on the signature page).
<PAGE>
First Data Corporation
Supplemental Savings Plan
1. PURPOSE
-------
The purpose of the Plan is to provide for supplemental retirement
and related benefits for a select group of management and highly compensated
employees of First Data Corporation (the "Company") and any Participating
Company, as part of an integrated compensation program which is intended to
assist the Company and its affiliates in attracting, motivating and retaining
employees of superior ability, industry and loyalty.
2. DEFINITIONS
-----------
The following words and phrases as used herein shall have the
following meanings, unless a different meaning is plainly required by the
context:
"Board of Directors" shall mean the Board of Directors of the
------------------
Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
----
"Committee" shall mean the First Data Corporation Employee
---------
Benefits Administration and Investment Committee, or such person or
persons as the Board of Directors shall from time to time designate to act as
the Committee with respect to the Plan. The Board of Directors or the Committee
may determine that certain of the administrative responsibilities of the
Committee under the Plan should be carried out by employees of the Company or
other persons as the Board of Directors or the Committee deems appropriate.
"Company" shall mean First Data Corporation, a Delaware
-------
corporation, its affiliates and any successor thereto.
<PAGE>
"Compensation" shall have the meaning set forth in the First Data
------------
Corporation Incentive Savings Plan. Notwithstanding anything to the contrary,
in no event shall Compensation include income recognized as the result of the
exercise of non-qualified stock options granted by the Company or attributable
to a disqualifying disposition of any stock subject to the provisions of Section
421 of the Code.
"Designated Beneficiary" shall mean the beneficiary designated by
----------------------
a Participant to receive any benefits payable under the Plan upon his or her
death. In the absence of a beneficiary designation, the Participant's
"Designated Beneficiary" shall be his or her spouse and if none, his or her
estate.
"Eligible Compensation" shall mean the Participant's base salary
---------------------
and bonuses from the Company or the Participating Company, and shall exclude all
other types of compensation, including, but not limited to severance pay and
contributions to tax qualified retirement plans.
"Entry Date" shall mean the January 1 of each Plan Year, except
----------
that with respect to the first Plan Year, the Entry Date shall be October 1,
1996 and the next Entry Date shall be January 1, 1998.
"Interest Equivalent" shall mean the amount added to a
-------------------
Participant's Plan Deferral Account in accordance with the provisions of Section
7.
"Participant" shall mean those employees of the Company or a
-----------
Participating Company who are eligible to participate in the Plan in accordance
with Section 3 and who elect to defer income by transmitting a Participation
Election.
-2-
<PAGE>
"Participating Company " shall mean any entity that is an
---------------------
"Employing Company" as that term is defined in the First Data Corporation
Incentive Savings Plan.
"Participation Election" shall mean an election transmitted
----------------------
electronically or in writing by an employee eligible to participate in the Plan
specifying the amount of income to be deferred in accordance with the provisions
of the Plan in accordance with procedures established by the Committee.
"Permissible Investments" are those investment options made
-----------------------
available for investment choices by Participants at the discretion of the
Committee. Under the rules established by the Committee, a limited number of
investment options may be made available for Participant investment choices.
"Plan" shall mean the First Data Corporation Restoration Plan.
----
"Plan Deferral Account" shall mean the amount credited for the
---------------------
benefit of a Participant under Section 7 on the basis of income deferred in
accordance with such Participant's Participation Election, increased by such
Participant's Interest Equivalent with respect to such Participant's Plan
Deferral Account.
"Plan Year" shall mean the calendar year except that the first
---------
Plan Year shall be the 15-month period commencing October 1, 1996 and ending
December 31, 1997.
"Rabbi Trust" shall mean a grantor trust in which assets may be
-----------
segregated for use by the Company to pay liabilities to a participant in the
Plan; provided, however, that any such trust shall be established and maintained
in a manner that is consistent with the treatment of its assets as assets of the
Company for Federal income tax purposes and that such assets shall be
-3-
<PAGE>
held in the trust subject to the claims of the Company's creditors in the event
of Company's bankruptcy or insolvency.
"Valuation Date" shall mean the last day of each Plan Year or,
--------------
with respect to a specific Participant, the date of a payment under the Plan of
the amount of such Participant's Plan Deferral Account.
3. PARTICIPATION
-------------
(a) All employees of the Company and each Participating Company
who are credited with one Year of Eligibility Service (as that term is defined
for purposes of the First Data Corporation Incentive Savings Plan), other than
employees who are not classified by the Company as exempt from the overtime pay
provisions of the Fair Labor Standards Act of 1938, as amended, shall be
eligible to participate in the Plan provided such employees' Compensation is
equal to or greater than $75,000 during a calendar year. The Committee shall
interpret this eligibility requirement in the following manner: Any employee of
the Company or a Participating Company whose base salary is payable at a rate
that equals or exceeds $75,000 per year shall, as soon as all other requirements
for participation are satisfied, be immediately eligible to transmit a
Participation Election electing to participate in the Plan in accordance with
the terms of this Section 3(c). Any employee of the Company or a Participating
Company whose base salary is payable at a rate that is less than $75,000 per
year shall be eligible to transmit a Participation Election electing to
participate in the Plan during the Plan Year commencing after the calendar year
in which such employee's Compensation equals or exceeds $75,000 by complying
with the
-4-
<PAGE>
provisions of this Section 3(c) provided all other requirements for
participation have been satisfied.
(b) Notwithstanding the eligibility requirements set forth in
Section 3(a) above, any employee or group of employees may be excluded from
participation in the Plan at the discretion of the Committee if the Committee
determines that participation in the Plan by any such employee or group of
employees would cause the Plan to become subject to the funding requirements of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or
would cause the Plan not to qualify for the alternative method of compliance
with the reporting and disclosure requirements of Part 1 of Title I of ERISA set
forth in Department of Labor Regulation Section 2520.104-23 (applicable to
pension plans maintained for a select group of management or highly compensated
employees).
(c) Any employee who is eligible to participate in the Plan in
accordance with Section 3(a) above and who is not excluded from participation I
accordance with Section 3(b) above shall become a Participant in the Plan by
transmitting a Participation Election to the Committee or its delegatee in
accordance with the terms of the Plan and such rules as may be established by
the Committee. The Participation Election for each Participant shall specify
the amount, stated as a percentage, not in excess of 12%, to be uniformly
applied to all of the Participant's Eligible Compensation in determining the
amounts of such Participant's Eligible Compensation to be deferred for the
subsequent Plan Year. A Participation Election made by an employee eligible to
participate in the Plan shall become effective as of the first Entry Date
following receipt of the Participation Election by the Committee or its
delegatee. A Participation
-5-
<PAGE>
Election shall be irrevocable once it becomes effective except as provided
below. A Participant's election to defer Eligible Compensation shall remain in
effect from one Plan Year to the next, unless changed by the Participant by
means of transmitting a written or electronic notice revoking the Participation
Election or a new Participation Election with the Committee or its delegatee in
accordance with such rules and procedures as may be established by the
Committee. A revocation of a Participation Election shall be effective as soon
as practicable following its receipt by the Committee or its delegatee. A new
Participation Election following a revocation shall become effective as of the
first day of the Plan Year following receipt of the new Participation Election
by the Committee or its delegatee.
(d) Notwithstanding anything contained herein to the contrary,
the Committee shall have the discretion to establish such special rules and/or
procedures, from time to time, as it deems appropriate, with respect to
Participation Elections by any employee who is an "officer" within the meaning
of Rule 16a-1(f) promulgated under the Securities Exchange Act of 1934, as
amended, or any successor rule or who is a member of the Board of Directors.
(e) Notwithstanding the provisions of Section 3(a) and 3(c)
above, any employee who first is credited with one Year of Eligibility Service
on or after October 1, 1996 and who is otherwise eligible to participate in the
Plan may commence his or her participation in the Plan during the calendar year
in which such employee is first credited with one Year of Eligibility Service by
transmitting a Participation Election at any time during such calendar year to
the Committee or its delegatee and shall commence his or her participation in
the Plan as of the first day of the month following receipt of the Participation
Election by the Committee or its
-6-
<PAGE>
delegatee. The provisions of this Section 3(e) shall cease to be applicable to
any employee after the calendar year in which such employee is first credited
with one Year of Eligibility Service.
4. TERM OF PLAN
------------
The Plan shall be in effect as of October 1, 1996, and shall
continue until all obligations of the Company pursuant to the Plan have been
paid, unless sooner terminated at the discretion of the Company.
5. VESTING
-------
A Participant's interest in his or her Plan Deferral Account
shall be fully vested at all times.
6. BENEFIT ENTITLEMENT
-------------------
(a) Benefits. Except as otherwise provided herein, a
--------
Participant's benefit under the Plan shall be the amount of such Participant's
Plan Deferral Account.
(b) Payment of Benefits. Except as otherwise provided under the
-------------------
Plan, the benefit of a Participant shall be paid to the Participant or the
Participant's Designated Beneficiary in a lump sum on the earlier of such
Participant's termination of employment with the Company (for any reason) or
termination of the Plan.
(c) Hardship. A Participant may petition the Committee for a
--------
distribution of all or a portion of his Plan Deferral Account on account of an
unforeseeable
-7-
<PAGE>
emergency. If the Committee determines that there is such an unforeseeable
emergency, and that there are insufficient resources available from other
sources to pay the expenses associated with such unforeseeable emergency, the
Participant shall receive a payment in an amount not to exceed the lesser of the
Participant's Plan Deferral Account or the amount required to meet the financial
needs arising from the unforeseeable emergency (increased to take into account
any tax liability on such benefit payment and decreased to take into account
amounts available from other sources, including reimbursement through insurance
or otherwise, the liquidation of other assets of the Participant to the extent
such liquidation does not cause severe financial hardship, or by cessation of
deferrals under the Plan). For purposes of this Section 6(c), an unforeseeable
emergency is any severe financial hardship to the Participant resulting from a
sudden and unexpected illness or accident of the Participant or a dependent of
the Participant, loss of property of the Participant due to casualty, or other
similar extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the Participant.
(d) Installment Payments. Notwithstanding anything contained
--------------------
herein to the contrary, any Participant may request that his or her benefit be
paid in installments (annual, monthly or quarterly) over a period of up to ten
years provided that such request is filed with the Committee at least six months
prior to the date of such Participant's termination of employment. In the event
a Participant makes such a request, the Committee shall, within 30 days of
receipt of such request, notify the Participant of whether the payment of the
Participant's benefit will be made in the form of the installment payments
requested, or, notwithstanding such request, in a lump sum on the date the
benefit would otherwise be payable under the Plan. The decision
-8-
<PAGE>
whether to comply with a request by a Participant for payment of plan benefits
in the form of installment payments shall be made entirely at the discretion of
the Committee. Once a request for installment payments has been made and the
Committee has decided to make such installment payments, no further change in
the form of benefit payments shall be made.
(e) Compensation in Excess of Section 162(m) Limitations.
----------------------------------------------------
Notwithstanding anything to the contrary contained herein, in the event a
Participant is a "covered employee" as that term is used for purposes of Code
Section 162(m), payment of benefits under the Plan shall not be made to such a
Participant to the extent that the amount paid is subject to the limitations on
deductibility under such Code Section or is reasonably likely to cause other
payments to such Participant to be subject to such limitations on deductibility.
In the event a payment is not made by reason of this Section 6(e), the payment
will be made as soon as the payment can be made without the causing the
limitations on deductibility under Code Section 162(m) to be applicable. For
purposes of this Section 6(e), a payment is subject to Code Section 162(m) to
the extent that it exceeds the limits on deductible compensation payments and is
not otherwise exempt from the application of that Code Section (e.g., on account
of the exception for performance-based compensation).
7. PLAN DEFERRAL ACCOUNTS AND INTEREST EQUIVALENTS
-----------------------------------------------
(a) Deferred Eligible Compensation. Each person who is eligible
------------------------------
to participate in the Plan and who transmits a Participation Election to the
Committee or its delegatee shall be a Participant and shall have a Plan Deferral
Account which shall be credited
-9-
<PAGE>
with the amount of such Participant's Eligible Compensation that is deferred
under such Participation Election, subject to adjustment for Interest
Equivalents as set forth below.
(b) Interest Equivalents. Each Participant's Plan Deferral
--------------------
Account shall be adjusted at the end of each Plan Year (or on the date of
distribution) (either such date being referred to herein as the "Valuation
Date") to take into account the Interest Equivalent for such period applicable
to such account. For purposes of the Plan, the Interest Equivalent shall be
equal to the amount of interest that a Participant's Plan Deferral Account would
earn if that amount were invested in an interest bearing investment paying
interest at a rate of 8%, or such other rate as the Committee may establish from
time to time, compounded quarterly. For purposes of calculating the Interest
Equivalent applicable to a Participant's Plan Deferral Account, the balance in
such Plan Deferral Account at the beginning of the Plan Year shall be treated as
having been invested for the full Plan Year or until the Participant is paid a
benefit in accordance with the provisions of the Plan (if such payment occurs
prior to the end of the Plan Year), in which event any such payments will be
taken into account as a negative adjustment to the remaining balance in the
Participant's Plan Deferral Account and therefore as a reduction in the amount
treated as invested under the provisions of the Plan, while amounts deferred
under the Participant's Participation Election during the Plan Year shall be
treated as having been invested as of the date the amount of the Participant's
deferred Eligible Compensation would otherwise have been payable to the
Participant in the absence of a Participation Election.
-10-
<PAGE>
8. FUNDING OF LIABILITIES
----------------------
The Plan is intended to be an unfunded, non-qualified plan
maintained by the Company for the purpose of providing deferred compensation for
a select group of management and highly compensated employees. However, benefits
under the Plan may be provided through a Rabbi Trust. A contribution to such
trust in any year shall not create any obligation of the Company to make
contributions to such trust thereafter. The Plan shall be administered and
construed so as to effectuate this intent. Any liability of the Company to any
person with respect to benefits payable under the Plan shall be based solely
upon such contractual obligations, if any, as shall be created by the Plan, and
shall give rise only to a claim against the general assets of the Company. No
such liability shall be deemed to be secured by any pledge or any other
encumbrance on any specified property of the Company. To the extent any benefits
payable under the Plan are paid through a Rabbi Trust, the Company's contractual
obligations, if any, shall be reduced accordingly.
9. COMMITTEE
---------
(a) Powers. The Committee shall have the power and duty to do all
------
things necessary or convenient to effect the intent and purposes of the Plan and
not inconsistent with any of the provisions hereof, whether or not such powers
and duties are specifically set forth herein, and, by way of amplification and
not limitation of the foregoing, the Committee shall have the power to:
-11-
<PAGE>
(i) provide rules and regulations for the management,
operation and administration of the Plan, and, from time to time, to amend or
supplement such rules and regulations;
(ii) construe the Plan, which construction, as long as made
in good faith, shall be final and conclusive upon all parties hereto; and
(iii) correct any defect, supply any omission, or reconcile
any inconsistency in the Plan in such manner and to such extent as it shall deem
expedient to carry the same into effect, and it shall be the sole and final
judge of when such action shall be appropriate. The acts and determinations of
the Committee, including determinations with respect to claims of a Participant
or Designated Beneficiary made in accordance with Section 11(h) hereof, shall be
final and conclusive.
(b) Indemnity.
---------
(i) Standard of Conduct. To the extent permitted by
-------------------
applicable Federal and other law, no member (which term, as used in this Section
9(b), shall include any person designated to carry out any responsibility of the
Committee pursuant to the applicable terms of the Plan) of the Committee shall
be liable for anything done or omitted to be done by him in connection with the
Plan, unless the act or omission claimed to be the basis for liability amounted
to a failure to act in good faith for a purpose which such member reasonably
believed to be in accordance with the intent of the Plan. The Company hereby
indemnifies each person, his heirs, estate, personal representatives, successors
or assigns made, or threatened to be made, a party to an action or proceeding,
whether civil or criminal, or against whom any claim or demand
-12-
<PAGE>
is made, by reason of the fact that he, his testator or intestate, was or is a
member of the Committee against judgments, fines, amounts paid in settlement and
reasonable expenses, including attorney's fees actually and necessarily incurred
as a result of such action or proceeding, or any appeal therein, or as a result
of such claim or demand, if such member of the Committee acted in good faith for
a purpose which he reasonably believed to be in accordance with the intent of
the Plan and, in criminal action or proceedings, in addition, had no reasonable
cause to believe that his conduct was unlawful.
(ii) Presumption of Good Faith. The termination of any such
-------------------------
civil criminal action or proceeding or the disposition of any such claim or
demand, by judgment, settlement, conviction or upon a plea of nolo contendere,
or its equivalent, shall not in itself create a presumption that any such member
of the Committee did not act in good faith, for a purpose which he reasonably
believed to be in accordance with the intent of the Plan or that he had
reasonable cause to believe that his conduct was unlawful.
(iii) Successful Defense. A person who has been wholly
------------------
successful, on the merits or otherwise, in the defense of a civil or criminal
action or proceeding or claim or demand of the character described in Paragraph
9(b)(i) shall be entitled to indemnification as authorized in such Paragraph
9(b)(i).
(iv) Unsuccessful Defense. Except as provided in Paragraph
--------------------
9(b)(iii) above any indemnification under Paragraphs 9(b)(i) and 9(b)(ii),
unless ordered by a court of competent jurisdiction, shall be made by the
Company only if authorized in the specific case:
-13-
<PAGE>
(A) Board Acting by a Quorum. By the Board of Directors
------------------------
acting by a quorum, consisting of a majority of directors none of whom are
parties to such action, proceeding, claim or demand, upon a finding that the
member of the Committee has met the standard of conduct set forth in Paragraph
9(b)(i), or,
(B) Board Acting Without a Quorum. If a quorum under
-----------------------------
Paragraph 9(b)(iv)(A) is not obtainable with due diligence:
(I) By the Board of Directors upon the opinion in
writing of independent legal counsel (who may be counsel to any Participating
Company) that indemnification is proper in the circumstances because the
standard of conduct set forth in Paragraph 9(b)(i) has been met by such member
of the Committee, or
(II) By the shareholders of the Company upon a
finding that the member of the Committee has met the standard of conduct set
forth in such Paragraph 9(b)(i).
(v) Advance Payments. Expenses incurred in defending a civil or
----------------
criminal action or proceeding or claim or demand may be paid by the Company in
advance of the final disposition of such action or proceeding, claim or demand,
if authorized in the manner specified in Paragraph 9(b)(iv), except that, in
view of the obligation of repayment set forth in Paragraph 9(b)(vi) below, there
need be no finding or opinion that the required standard of conduct has been
met.
(vi) Repayment of Advance Payments. All expenses incurred in
-----------------------------
defending a civil or criminal action or proceeding, claim or demand, which are
advanced by the
-14-
<PAGE>
Company under Paragraph 9(b)(v) shall be repaid in case the person receiving
such advance is ultimately found, under the procedure set forth in this Article,
not to be entitled to indemnification or, where indemnification is granted, to
the extent the expenses so advanced by the Company exceed the indemnification to
which he is entitled.
(vii) Right to Indemnification. Notwithstanding the failure of
------------------------
the Company to provide indemnification in the manner set forth in Paragraph
9(b)(iv) or 9(b)(v), and despite any contrary resolution of the Board or of the
shareholders in the specific case, if the member of the Committee has met the
standard of conduct set forth in Paragraph 9(b)(i), the person made or
threatened to be made a party to the action or proceeding or against whom the
claim or demand has been made shall have the legal right to indemnification from
the Company as a matter of contract by virtue of this Plan and the adoption and
approval thereof by the Board of Directors and shareholders of the Company, it
being the intention that each such person shall have the right to enforce such
right of indemnification against the Company in any court of competent
jurisdiction.
(viii) Other Remedies. The foregoing right of indemnification
--------------
shall not be deemed to limit or diminish any right of indemnification provided
by law or otherwise.
(c) Compensation and Expenses. Members of the Committee who are
-------------------------
employees of the Company shall receive no compensation for their services
rendered as members of the Committee. Any other members of the Committee who
are not employees of the Company shall receive such reasonable compensation for
their services as may be authorized from time to time by the Board of Directors
and, except as otherwise provided by this section, members of the
-15-
<PAGE>
Committee shall be entitled to receive their reasonable expenses incurred in
administering the Plan. Any such compensation and expenses, as well as
extraordinary expenses authorized by the Company, shall be paid by the Company.
(d) Participant Information. The Company shall furnish to the
-----------------------
Committee in writing all information the Company deems appropriate for the
Committee to exercise its powers and duties in administration of the Plan. Such
information may include, but shall not be limited to, the names of all
Participants, the date each became a Participant, his or her Eligible
Compensation and date of birth, employment, termination of employment,
retirement or death. Such information shall be conclusive for all purposes of
the Plan and the Committee shall be entitled to rely thereon without any
investigation thereof; provided, however, that the Committee may correct any
errors discovered in any such information.
(e) Inspection of Documents. The Committee shall make available to
-----------------------
each Participant and his Designated Beneficiary, for examination at the
principal office of the Company (or at such other location as may be determined
by the Committee), a copy of the Plan and such of its records, or copies
thereof, as may pertain to any benefits of such Participant and beneficiary
under the Plan.
-16-
<PAGE>
10. EFFECTIVE DATE, TERMINATION AND AMENDMENT
-----------------------------------------
(a) Effective Date of Participation in Plan. Each employee who is
---------------------------------------
eligible to participate in the Plan shall commence his or her participation in
the Plan in accordance with the applicable provisions of Section 3 of the Plan.
A Participation Election shall continue in effect from one Plan Year to the next
until such time as the Participation Election is revoked or a new Participation
Election is transmitted to the Committee or its delegatee, in which event the
change in or revocation of participation shall be effective as of the first day
of the Plan Year following the date such revocation or new Participation
Election is received by the Committee. No deferrals of Eligible Compensation
shall be made under the Plan following the effective date of a revocation of a
Participant's Participation Election in accordance with the terms of the Plan,
or following the date the Plan is terminated.
(b) Amendment and Termination of the Plan or Participation
------------------------------------------------------
Election. This Plan or the Participation Election of a Participant may be
- --------
terminated or revoked by the Company at any time and amended by the Company from
time to time, provided that neither the termination, revocation nor amendment of
the Plan or a Participation Election may, without the written approval of the
Participant, reduce the Plan Deferral Account or benefit payable to a
Participant calculated as of the time of such termination or amendment or defer
the time at which any benefit otherwise payable under the terms of the Plan is
to be paid.
11. MISCELLANEOUS PROVISIONS
------------------------
-17-
<PAGE>
(a) Anti-alienation. No benefit payable under the Plan shall be
---------------
subject to any manner of anticipation, alienation, sale, transfer, assignment,
pledge, attachment or encumbrance except by the Company; and any attempt to
anticipate, alienate, sell, transfer, assign, pledge, attach or encumber such
benefit, except by the Company, shall be void.
(b) Unsecured Creditor Status. Any Participant who may have or
-------------------------
claim any interest in or right to any compensation, payment, or benefit payable
hereunder, shall rely solely upon the unsecured promise of the Company, as set
forth herein, for the payment thereof, and nothing herein contained shall be
construed to give to or vest in a Participant or any other person now or at any
time in the future, any right, title, interest, or claim in or to any specific
asset, fund, reserve, account, insurance or annuity policy or contract, or other
property of any kind whatever owned by the Company, or in which the Company may
have any right, title, or interest, nor or at any time in the future. Any
insurance policy or other assets acquired by the Company to fund, in whole or in
part, the Company's liabilities under the Plan shall not be deemed to be held as
security for the performance of the obligations of the Company hereunder but
shall be, and remain, a general asset of the Company subject to the claims of
its creditors.
(c) Other Company Plans. It is agreed and understood that any
-------------------
benefits under this Plan are in addition to any and all employee benefits to
which a Participant may otherwise be entitled under any other contract,
arrangement, or voluntary pension, profit sharing or other compensation plan of
the Company or its affiliates, whether funded or unfunded, and that this Plan
shall not affect or impair the rights or obligations of the Company, its
affiliates or a
-18-
<PAGE>
Participant under any other such contract, arrangement, or voluntary pension,
profit sharing or other compensation plan.
(d) Separability. If any term or condition of the Plan shall
------------
be invalid or unenforceable to any extent or in any application, then the
remainder of the Plan, with the exception of such invalid or unenforceable
provision, shall not be affected thereby, and shall continue in effect and
application to its fullest extent.
(e) Continued Employment. Neither the establishment of the
--------------------
Plan, any provisions of the Plan, nor any action of the Committee shall be held
or construed to confer upon any Participant the right to a continuation of
employment with the Company or any of its affiliates. The Company and its
affiliates reserve the right to dismiss any employee (including a Participant),
or otherwise deal with any employee (including a Participant) to the same extent
as though the Plan had not been adopted.
(f) Incapacity. If the Committee determines that a
----------
Participant or Beneficiary is unable to care for his affairs because of illness
or accident, or is a minor, any benefit due such Participant or Beneficiary
under the Plan may be paid to his spouse, child, parent, or any other person
deemed by the Committee to have incurred expense for such Participant or
Beneficiary (including a duly appointed guardian, committee, or other legal
representative), and any such payment shall be a complete discharge of the
Company's obligation hereunder.
(g) Jurisdiction. The Plan shall be construed, administered,
------------
and enforced according to the laws of the State of Delaware, except to the
extent that such laws are preempted by the Federal laws of the United States of
America.
-19-
<PAGE>
(h) Claims. If, pursuant to the provisions of the Plan, the
------
Committee denies the claim of a Participant or Designated Beneficiary for
benefits under the Plan, the Committee shall provide written notice, within 60
days after receipt of the claim, setting forth in a manner calculated to be
understood by the claimant:
(i) the specific reasons for such denial;
(ii) the specific reference to the Plan provisions on
which the denial is based;
(iii) a description of any additional material or
information necessary to perfect the claim and an explanation of why such
material or information is needed; and
(iv) an explanation of the Plan's claim review
procedure and the time limitations of this subsection applicable thereto.
A Participant or Designated Beneficiary whose claim for benefits has
been denied may request review by the Committee of the denied claim by notifying
the Committee in writing within 60 days after receipt of the notification of
claim denial. As part of said review procedure, the claimant or his authorized
representative may review pertinent documents and submit issues and comments to
the Committee in writing. The Committee shall render its decision to the
claimant in writing in a manner calculated to be understood by the claimant not
later than 60 days after receipt of the request for review, unless special
circumstances require an extension of time, in which case a decision shall be
rendered as soon after the sixty-day period as possible,
-20-
<PAGE>
but not later than 120 days after receipt of the request for review. The
decision on review shall state the specific reasons therefor and the specific
Plan references on which it is based.
(i) Withholding. The Participant or the Designated
-----------
Beneficiary shall make appropriate arrangements with the Company for
satisfaction of any federal, state or local income tax withholding requirements
and Social Security or other tax requirements applicable to the accrual or
payment of benefits under the Plan. If no other arrangements are made, the
Company may provide, at its discretion, for any withholding and tax payments as
may be required.
IN WITNESS WHEREOF, First Data Corporation has caused this Plan to be
adopted as of October 1, 1996.
First Data Corporation
By:__________________________
General Counsel
-21-
<PAGE>
Exhibit 5
July 25, 1996
Board of Directors
First Data Corporation.
401 Hackensack Avenue - 7th Floor
Hackensack, NJ 07601
RE: First Data Corporation
Registration Statement on Form S-8
Dear Gentlemen:
As Senior Counsel of First Data Corporation, a Delaware corporation
(the"Company"), I have participated in the preparation and the filing by the
Company of a Registration Statement on Form S-8 (the "Registration Statement")
relating to the registration under the Securities Act of 1933, as amended, of
$10,000,000 of the Corporation's deferred compensation obligations ( the
"Obligations"), which are issuable under the First Data Corporation Supplemental
Savings Plan ("The Plan") effective as of October 1, 1996. The Securities were
authorized for issuance, offering and sale by the Board of Directors of the
Company by resolutions duly adopted on July 24, 1996.
I have examined such agreements, documents, instruments and records as I deemed
necessary or appropriate under the circumstances for me to express the opinions
set forth below. Based upon and subject to the foregoing, it is my opinion
that:
the Obligations under the Plan have been duly authorized and,
when issued in accordance with the terms and conditions set
forth in the Plan, will constitute valid and binding obligations
of the Company.
I hereby consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Corporation's Registration Statement on Form S-8
relating to the Securities and to the reference made to me under the heading
"Legal Matters" set forth in the prospectus forming a part of said Registration
Statement.
Sincerely,
/s/ PATRICIA A. WINCHELL
- --------------------------
Patricia A. Winchell
PAW/pp
<PAGE>
Exhibit 15
July 25, 1996
The Stockholders and Board of Directors
First Data Corporation
We are aware of the incorporation by reference in the Registration Statement on
Form S-8 of First Data Corporation pertaining to the First Data Corporation
Supplemental Savings Plan of our report dated May 10, 1996, relating to the
unaudited consolidated interim financial statements of First Data Corporation
included in its Form 10-Q for the quarter ended March 31, 1996.
Pursuant to Rule 436(c) of the Securities Act of 1933 our report is not a part
of the registration statement prepared or certified by accountants within the
meaning of Section 7 or 11 of the Securities Act of 1933.
/s/ ERNST & YOUNG LLP
Ernst & Young LLP
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of First Data Corporation pertaining to the First Data Corporation
Supplemental Savings Plan of our report dated February 5, 1996, with respect to
the consolidated financial statements and schedule of First Data Corporation
included in its Annual Report (Form 10-K) for the year ended December 31, 1995,
filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Ernst & Young LLP
New York, New York
July 25, 1996
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
First Data Corporation on Form S-8 of our report dated January 27, 1995
(relating to the consolidated financial statements and schedule of First
Financial Management Corporation), appearing in the Annual Report on Form 10-K
of First Data Corporation for the year ended December 31, 1995.
/s/ Deloitte & Touche LLP
- -------------------------
DELOITTE & TOUCHE LLP
Atlanta, Georgia
July 24, 1996
