<PAGE>
<TABLE>
<CAPTION>
<S><C>
As filed with the Securities and Exchange Commission on November 10, 1999. Registration No. 33-
===========================================================================================================================
</TABLE>
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)
5660 New Northside Drive
Suite 1400
Atlanta, Georgia 30328-5800
(Address of principal executive offices) (Zip code)
First Data Corporation Supplemental Savings Plan 2000
(Full title of the Plan)
Michael T. Whealy
First Data Corporation
5660 New Northside Drive
Suite 1400
Atlanta, Georgia 30328-5800
(770) 857-0001
(Name, address and telephone number,
including area code, of agent for service)
Copies To:
Thomas A. Rossi, Esquire
Stanley J. Andersen, Esquire
2121 North 117th Avenue
Omaha, Nebraska 68164
CALCULATION OF REGISTRATION FEE
<TABLE>
===========================================================================================================================
<S> <C> <C> <C> <C>
Amount Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Offering Price Aggregate Registration
to be Registered Registered/(2)/ Per Security Offering Price Fee
- --------------------------------------- --------------- ---------------- ---------------- ---------------
Supplemental Savings Plan 2000 $30,000,000 100% $30,000,000 $8,340
Deferred Compensation Obligation /(1)/
===========================================================================================================================
</TABLE>
(1) The deferred compensation obligations are obligations of First Data
Corporation to pay deferred compensation in the future in accordance with
the terms of the Supplemental Savings Plan 2000.
(2) Estimated solely for the purpose of determining the registration fee.
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
The following documents heretofore filed with the Securities and
Exchange Commission by First Data Corporation (the "Registrant") are
incorporated herein by reference:
(a) the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1998, filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act");
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the 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 hereinafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
-------------------------
Under the First Data Corporation Supplemental Savings Plan 2000 (the
"Plan"), the Registrant will provide eligible employees of the Registrant and
its affiliates the opportunity to elect to defer a specified percentage of their
cash compensation. The obligations of the Registrant ultimately to pay such
deferred amounts in accordance with the Plan (the "Obligations") will be
unsecured general obligations of the Registrant, and will rank equally with
other unsecured and unsubordinated indebtedness of the Registrant that is
outstanding from time to time. Because the Registrant is a holding company, the
right of the Registrant, hence the right of creditors of the Registrant
(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 Registrant 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 following termination of the
participant's employment or on a date selected by the participant in
accordance with the terms of the Plan. The obligations initially accrue interest
at the rate of seven and one-half percent per year, compounded quarterly. The
rate may be changed by the Registrant. 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 under the Plan 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 Registrant 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
Registrant. The Obligations will not have the benefit of a negative pledge or
any other affirmative or negative covenant on the part of the Registrant. 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 offering of the securities
registered hereby have been passed upon by Heidi J. Kesinger, Senior Counsel of
the Registrant. Ms. Kesinger is paid a salary by Registrant and is a
participant in various employee benefit plans offered to employees of the
Registrant. Ms. Kesinger holds options to purchase shares of First Data common
stock.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
In accordance with the Delaware General Corporation Law ("DGCL"), the
Restated Certificate of Incorporation of the Registrant limits the personal
liability of the directors of the Registrant for violations of their fiduciary
duty. This provision eliminates each director's liability to the Registrant 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 Registrant 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
<PAGE>
of directors for unlawful payment of dividends or unlawful stock purchases or
redemptions, or (iv) for any transaction from which a director derived an
improper benefit. The effect of this provision is to eliminate the personal
liability of directors for monetary damages for actions involving a breach of
their fiduciary duty of care, including any such actions involving gross
negligence.
The Restated Certificate of Incorporation of the Registrant also
provides for indemnification of the Registrant's officers and directors to the
fullest extent permitted by applicable law. Section 145 of the DGCL empowers a
Delaware corporation to indemnify any persons who are, or are threatened to be
made, parties to any threatened, pending or completed legal action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation), by reason of the fact that
such person was an officer or director of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided that such officer or director acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests, and, for criminal proceedings, had no reasonable
cause to believe his conduct was illegal. A Delaware corporation may indemnify
officers and directors in an action by or in the right of the corporation under
the same conditions, except that no indemnification is permitted without
judicial approval if the officer or director is adjudged to be liable to the
corporation in the performance of his duty. Where an officer or director is
successful on the merits or otherwise in the defense of any action referred to
above, the corporation must indemnify him against the expenses which such
officer or director actually and reasonably incurred. The By-laws of the
Registrant provide officers and directors similar rights to indemnification
except that the By-laws (i) only provide for indemnification if the person is
defending an action and (ii) do not provide for the indemnification of
judgments, fines and amounts paid in settlement in actions brought by or in the
right of the corporation.
In addition, the Registrant maintains insurance policies which provide
coverage for its officers and directors in certain situations where the
Registrant cannot directly indemnify such officers or directors. The rights of
indemnification discussed above are not exclusive of any other rights which a
director or officer may acquire in the future.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
Exhibit
Number Description of Exhibit
- ------ ----------------------
4 First Data Corporation Supplemental Savings Plan 2000
5 Opinion and Consent of Heidi J. Kesinger, Esq.
15 Letter from Ernst & Young LLP regarding Unaudited Interim Financial
Information.
<PAGE>
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Heidi J. Kesinger, Esq. (included in the opinion of Ms.
Kesinger 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.
<PAGE>
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein and the offering of such securities at
the time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the foregoing provisions or otherwise, the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act, and 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
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 Atlanta, State of Georgia, on November 10, 1999.
FIRST DATA CORPORATION
By: /s/ Henry C. Duques
------------------------------------
Henry C. Duques
Chairman of the Board
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
immediately below constitutes and appoints Michael T. Whealy, Thomas A. Rossi
and Stanley J. Andersen, and each or any of them, his true and lawful attorney-
in-fact and agent, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or the substitutes or substitute of any of them, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Henry C. Duques Chairman of the Board and November 10, 1999
- ---------------------------- Chief Executive Officer
Henry C. Duques
/s/ Lee Adrean Chief Financial Officer November 10, 1999
- ---------------------------- (Principal Financial Officer)
Lee Adrean
<PAGE>
/s/ Jeff Holtz Vice President and Corporate November 10, 1999
- ---------------------------- Controller
Jeff Holtz (Principal Accounting Officer)
/s/ Ben Burdetsky Director November 10, 1999
- ----------------------------
Ben Burdetsky
/s/ Courtney F. Jones Director November 10, 1999
- ----------------------------
Courtney F. Jones
/s/ Robert J. Levenson Director November 10, 1999
- ----------------------------
Robert J. Levenson
/s/ James D. Robinson III Director November 10, 1999
- ----------------------------
James D. Robinson III
/s/ Charles T. Russell Director November 10, 1999
- ----------------------------
Charles T. Russell
/s/ Bernard L. Schwartz Director November 10, 1999
- ----------------------------
Bernard L. Schwartz
/s/ Joan E. Spero Director November 10, 1999
- ----------------------------
Joan E. Spero
/s/ Garen K. Staglin Director November 10, 1999
- ----------------------------
Garen K. Staglin
<PAGE>
INDEX
-----
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------ ----------------------
4 First Data Corporation Supplemental Savings Plan 2000
5 Opinion and Consent of Heidi J. Kesinger, Esq.
15 Letter from Ernst & Young LLP regarding Unaudited Interim
Financial Information.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Heidi J. Kesinger, Esq. (included in the opinion of Ms.
Kesinger filed as Exhibit 5 hereto).
24 Power of Attorney (included on the signature page).
<PAGE>
EXHIBIT 4
First Data Corporation
Supplemental Savings Plan - 2000
1. PURPOSE
The purpose of this First Data Corporation Supplemental Savings Plan - 2000
(the "Plan") is to provide a supplemental savings program for certain key
employees of First Data Corporation (the "Company") as part of an integrated
compensation program intended to assist the Company in attracting, motivating
and retaining employees of superior ability, industry and loyalty. This Plan is
intended to constitute a nonqualified deferred compensation plan providing
benefits to selected executive employees of the Company who constitute "a select
group of management or highly compensated employees" and is intended to be
unfunded for tax purposes and within the meaning of sections 201(2), 301(a)(3)
and 401(a)(1) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA").
2. DEFINITIONS
The following words and phrases as used herein shall have the following
meanings when capitalized:
(a) "Affiliate" shall mean any entity which is treated as a single employer
together with the Company pursuant to section 414(b) or (c) of the Code, and any
other entity or organization designated as an affiliate by the Plan
Administrator.
(b) "Board of Directors" shall mean the Board of Directors of the Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended.
<PAGE>
TABLE OF CONTENTS
-----------------
ARTICLE PAGE
------- ----
1. PURPOSE...............................................1
2. DEFINITIONS...........................................1
3. PARTICIPATION.........................................5
4. VESTING...............................................7
5. PLAN DEFERRAL ACCOUNTS AND EARNINGS EQUIVALENTS.......8
6. DISTRIBUTIONS.........................................10
7. PAYMENTS FROM A GRANTOR TRUST.........................14
8. PLAN ADMINISTRATOR....................................14
9. TERMINATION AND AMENDMENT.............................15
10. MISCELLANEOUS PROVISIONS..............................16
i
<PAGE>
(d) "Company" shall mean First Data Corporation, a Delaware corporation,
and any successor thereto.
(e) "Compensation" means, for all purposes of the Plan, "compensation" as
defined in the First Data Corporation Incentive Savings Plan, as may be amended,
in which case such amendments shall automatically apply to the definition of
Compensation under this Plan. Notwithstanding the foregoing, a Participant's
Compensation for any Plan Year in excess of $1,000,000 shall not be taken into
account for purposes of the Plan.
(f) "Designated Beneficiary" shall mean the person or persons designated by
a Participant pursuant to rules prescribed by the Plan Administrator to receive
any benefits payable pursuant to the Plan upon his or her death. In the absence
of a beneficiary designation, or if a Participant's Designated Beneficiary dies
prior to the Participant's death, the Participant's Designated Beneficiary shall
be his or her surviving spouse, if any, and if none, his or her estate.
(g) "Earnings Equivalent" shall mean the amount credited to a Participant's
Plan Deferral Account pursuant to Section 5(a)(5).
(h) "Effective Date" shall mean January 1, 2000.
(i) "Eligible Employee" shall mean (1) an Employee whose Compensation for
the preceding Plan Year was at least $120,000 and who has the title of Vice-
President or above, (2) an Employee whose Compensation for the preceding Plan
Year was less than $120,000 but who, as a result of a promotion, has a current
annual base salary of at
2
<PAGE>
least $120,000 and has the title of Vice President or above, or (3) an Employee
who is hired during the current Plan Year with an annual base salary of at least
$120,000 and has the title of Vice President or above. The Plan Administrator
shall determine whether any Employee holds the title of Vice President or above
and otherwise satisfies the eligibility criteria set forth in this section.
(j) "Employee" shall mean an individual who is classified in an Employer's
personnel records and payroll system as an employee, provided, however, that an
-------- -------
individual who performs services for an Employer pursuant to an agreement, oral
or written, that such individual shall be treated as an employee of another
organization or as an independent contractor shall not be an Employee for
purposes of the Plan without regard to whether such individual is otherwise
determined to be an employee of an Employer under common law.
(k) "Employer" shall mean the Company and any Affiliate of the Company,
that with the written consent of the Plan Administrator, adopts the Plan.
(l) "Excess Benefit Credits" means the amounts, if any, credited to a
Participant's Plan Deferral Account pursuant to Section 5(a)(4).
(m) "ISP Plan" shall mean the First Data Corporation Incentive Savings
Plan, as in effect from time to time.
(n) "Participant" shall mean an Eligible Employee who has elected to defer
Compensation to the Plan by making a Participation Election. An individual
shall cease to be a Participant upon the complete distribution of his or her
Plan Deferral Account.
3
<PAGE>
(o) "Participation Election" shall mean an election made by an Eligible
Employee and transmitted to the Plan Administrator in accordance with procedures
established by the Plan Administrator specifying the amount of the Participant's
Compensation to be deferred under the Plan pursuant to Section 3.
(p) "Plan" shall mean the First Data Corporation Supplemental Savings Plan-
2000, as may be amended from time to time.
(q) "Plan Administrator" shall mean the First Data Corporation Employee
Benefits Administration and Investment Committee appointed by the Compensation
and Benefits Committee of the Board of Directors, or such other person or
persons as the Board of Directors shall from time to time designate to act as
the plan administrator of the Plan. The Board of Directors or the Plan
Administrator may delegate administrative responsibilities under the Plan to
Employees of the Employers or such other persons as the Board of Directors or
the Plan Administrator may deem appropriate.
(r) "Plan Deferral Account" shall mean the bookkeeping account established
pursuant to Section 5 to reflect the benefits credited under the Plan on behalf
of a Participant.
(s) "Plan Year" shall mean the calendar year.
(t) "Valuation Date" shall mean the last day of each calendar quarter and
such other dates as may be selected by the Plan Administrator.
4
<PAGE>
3. PARTICIPATION
(a) Eligibility. Each Employee who is an Eligible Employee
-----------
immediately before the Effective Date shall be eligible to participate in the
Plan on the Effective Date and to make a Participation Election effective as of
the Effective Date and as of the first day of each Plan Year thereafter while he
or she remains an Eligible Employee. An Employee who is not an Eligible
Employee on the Effective Date but who becomes an Eligible Employee thereafter
shall be eligible to participate in the Plan and to make a Participation
Election within 30 days after the Employee first becomes an Eligible Employee,
as of the first day of any Plan Year coinciding with or next following the date
on which he or she first becomes an Eligible Employee, and as of the first day
of each Plan Year thereafter while he or she remains an Eligible Employee.
(b) Participation Elections. An Eligible Employee shall become a
-----------------------
Participant by transmitting a Participation Election to the Plan Administrator
in accordance with the terms of the Plan, subject to any such rules or
procedures as may be established by the Plan Administrator. A Participant's
Participation Election shall authorize the Participant's Employer to reduce the
Compensation otherwise payable to a Participant by an amount, stated as a whole
percentage not in excess of 9%, of the Participant's Compensation, and shall
direct the Employer to credit such amount to the Participant's Plan Deferral
Account. A Participation Election shall be effective on the first day of the
Plan Year next following receipt of the Participation Election by the Plan
Administrator. In the case of an election made within 30 days after an Employee
first
5
<PAGE>
becomes an Eligible Employee, as soon as is practicable after receipt of such
election by the Plan Administrator, but shall apply only to Compensation paid
after such date. A Participation Election, once made and delivered to the Plan
Administrator shall remain in effect for the entire Plan Year and from one Plan
Year to the next, unless revoked or changed by the Participant, provided,
--------
however, that a Participant's Participation Election shall cease to be effective
- -------
as of the date on which he or she ceases to be an Eligible Employee. A
Participant may change or revoke a Participant Election by transmitting a notice
revoking or changing the Participation Election to the Plan Administrator in
accordance with such rules and procedures as may be established by the Plan
Administrator. A revocation or change of a Participant Election shall become
effective as of the first day of the Plan Year following its receipt by the Plan
Administrator. Notwithstanding the foregoing, a Participant may revoke a
Participation Election on account of an event determined by the Plan
Administrator to be a financial hardship described in Section 6(b), which shall
be effective as soon as practicable after such determination.
(c) Termination of Participation. Notwithstanding anything contained
----------------------------
herein to the contrary, the Plan Administrator shall have the discretion (i) to
establish such special rules 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
6
<PAGE>
successor rule or who is a member of the Board of Directors, and (ii) to revise
the classification of Eligible Employees or terminate the participation herein
of any Employee if the Plan Administrator determines that on account of a change
in law (including without limitation the issuance by the Department of Labor of
any regulation or other guidance), participation in the Plan by any Employee or
class of Employees as Eligible Employees could reasonably be expected to cause
the Plan to no longer be classified as providing benefits for a select group of
management or highly compensated employees within the meaning of sections
201(2), 301(a)(3) and 401(a)(1) of ERISA.
4. VESTING
Each Participant shall be fully vested at all times in the portion of his
or her Plan Deferral Account credited under Section 5(a)(2) attributable to the
Participant's Compensation reduced pursuant to a Participation Election and the
Earnings Equivalent attributable to such amounts. The portion of a
Participant's Plan Deferral Account attributable to Excess Benefit Credits for
employer matching contributions, service-related contributions and ISP Plus
contributions with respect to the ISP Plan pursuant to Section 5(a)(4) and the
Earnings Equivalent attributable to such amounts shall be vested and
nonforfeitable to the same extent as the Participant's interest in each such
benefit under the ISP Plan. Notwithstanding the foregoing, the portion of a
Participant's Plan Deferral Account attributable to Excess Benefit Credits and
the Earnings Equivalent attributable to such amounts shall be forfeited if
following termination of employment the Plan Administrator determines that the
Participant has violated the terms and conditions
7
<PAGE>
of the non-solicitation and non-competition agreement in effect between the
Participant and an Employer.
5. PLAN DEFERRAL ACCOUNTS AND EARNINGS EQUIVALENTS
(a) Plan Deferral Accounts. (1) In General. Each Employer shall
---------------------- ----------
establish on its books a Plan Deferral Account on behalf of each Participant who
is an Eligible Employee of such Employer.
(2) Credits With Respect to Participation Elections. Each Plan
-----------------------------------------------
Deferral Account shall be credited with the amounts by which a Participant's
Compensation is reduced pursuant to the Participant's Participation Election.
Such credits shall be made as of the date on which the amounts so deferred would
have been paid to the Participant but for his or her Participation Election.
(3) Credits For Prior Plan Account Balances. If a Participant
---------------------------------------
also was a Participant in the First Data Corporation Supplemental Savings Plan
as in effect prior to December 31, 1999 (the "Prior SSP Plan"), the balance of
such Participant's "Plan Deferral Account" under the Prior SSP Plan as of
December 31, 1999 shall automatically be transferred and credited to the
Participant's Plan Deferral Account under this Plan as of January 1, 2000. If an
Employee was a Participant in the Prior SSP Plan prior to December 31, 1999 who
first becomes an Eligible Employee after January 1, 2000, the balance of such
Participant's "Plan Deferral Account" under the Prior SSP Plan shall
automatically be transferred and credited to the Participant's Plan Deferral
Account
8
<PAGE>
under this Plan effective as soon as administratively feasible following the
date on which such Employee first becomes an Eligible Employee.
(4) Excess Benefit Credits. A Participant's Plan Deferral
----------------------
Account shall be credited with any amounts that would have been credited to his
or her accounts under Sections 3.3.1 (relating to employer matching
contributions) 3.3.2 (relating to service-related contributions) and 3.3.4
(relating to ISP Plus contributions) of the ISP Plan but for the limitations
imposed by sections 401(a)(17) of the Code, provided, however, that Excess
-------- -------
Benefit Credits for employer matching contributions shall be made for a Plan
Year only to the extent that a Participant's Participation Election is in effect
for such Plan Year and shall be calculated by treating the Participant's
Compensation deferrals under this Plan of up to 3% of Compensation in excess of
the limit imposed by section 401(a)(17) for such Plan Year in the same manner as
"Employing Company Elective Contributions" under the ISP Plan, and provided
--------
further, that for purposes of this Section 5(a)(4), a Participant's Compensation
- -------
for a Plan Year in excess of $1,000,000 shall not be taken into account. Such
amounts shall be credited to the Participant's Plan Deferral Account as of the
date such amounts would have been credited to the Participant's accounts under
the ISP Plan but for the application of such limitations. The Plan Administrator
shall separately account for that portion, if any, of a Participant's Plan
Deferral Account that is allocable to the Excess Benefit Credits attributable to
each of the employer matching contributions described in Section 3.3.1 of the
ISP Plan, the service-
9
<PAGE>
related contributions described in Section 3.3.2 of the ISP Plan and the ISP
Plus contributions described in Section 3.3.4 of the ISP Plan.
(5) Earnings Equivalents. The balance of each Plan Deferral
--------------------
Account shall be credited as of each Valuation Date with Earnings Equivalents
since the immediately preceding Valuation Date. The Earnings Equivalent shall be
interest at a rate of 7-1/2% per annum, or such other rate as the Plan
Administrator may establish from time to time.
(6) Distributions. Any distributions to a Participant or his
-------------
or her Designated Beneficiary pursuant to the Plan shall be charged against the
Participant's Plan Deferral Account.
6. DISTRIBUTIONS
(a) Payment of Benefits. Except as otherwise provided herein, a
-------------------
Participant's Employer shall pay the balance of the Participant's Plan Deferral
Account to the Participant or the Participant's Designated Beneficiary in a lump
sum as soon as practicable after the Valuation Date coinciding with or next
following such Participant's termination of employment with the Company and its
Affiliates (for any reason). If such lump sum distribution is not made within
30 days following the Valuation Date coinciding with or next following
termination of employment, the Participant's Plan Deferral Account shall be
credited with Earnings Equivalents through the last day of the month preceding
the date of distribution.
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(b) Hardship. A Participant may petition the Plan Administrator for a
--------
distribution of all or a portion of his or her Plan Deferral Account because of
financial hardship due to an unforeseeable emergency. If the Plan Administrator
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 any 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(b), an unforeseeable emergency is any
severe financial hardship to the Participant or a dependent of the Participant
caused by a sudden and unexpected illness or accident of the Participant or a
dependent, 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.
(c) Installment or Delayed Lump Sum Distribution Payments.
------------------------------------------------------
Notwithstanding anything contained herein to the contrary, any Participant may
elect (i) that his or her Plan Deferral Account be paid in installments (annual
or quarterly) over a
11
<PAGE>
period of up to five years commencing as soon as practicable after the Valuation
Date coinciding with or next following such Participant's termination of
employment with the Company and its Affiliates (for any reason), or (ii) that
his or her Plan Deferral Account be paid in a lump sum distribution as of the
Valuation Data coinciding with or next following any date prior to the fifth
anniversary of the Participant's termination of employment with the Company and
its Affiliates (for any reason). Such election (or a change thereof) may be made
at the time a Participant makes any Participation Election, or at any time
thereafter, provided that such election (or change thereof) is filed with the
Plan Administrator prior to the calendar year in which the Participant becomes
entitled to distribution of his or her Plan Deferral Account pursuant to Section
6(a). Once a Participant terminates employment with the Company, the
Participant's installment or delayed lump sum distribution election may not be
modified. A Participant's election pursuant to this Section 6(c) shall apply to
the Participant's entire Plan Deferral Account and once installment payments
have commenced from the Plan such installment payment election is irrevocable
unless the Participant is reemployed under Section 6(d) or dies prior to
completion of all installment payments. Notwithstanding anything contained
herein to the contrary, if a Participant who has made an election pursuant to
this Section 6(c) dies prior to commencement of or complete payment of such
distribution, the balance of the deceased Participant's Plan Deferral Account
shall be paid to the Participant's Designated Beneficiary on the Valuation Date
next following the date on which the Plan Administrator is notified of the
Participant's death. A Participant who has
12
<PAGE>
previously elected to receive his or her Plan Deferral Account in installment
payments or as a delayed lump sum distribution may elect to receive his or her
Plan Deferral Account in a lump sum pursuant to Section 6(a) or installment or
delayed lump sum distribution pursuant to this Section 6(c), provided that such
election (or change thereof) is filed with the Plan Administrator prior to the
end of the Plan Year in which the Participant becomes entitled to distribution
of his or her Plan Deferral Account pursuant to Section 6(a).
(d) Reemployment of Terminated Participants. If a Participant who
---------------------------------------
terminated employment and is receiving installment distributions pursuant to
Section 6(c) is rehired as an Eligible Employee by an Employer, such installment
payments shall cease during the period of his or her reemployment, without
regard to whether the Employee is an Eligible Employee during his or her period
of reemployment. Repayment of previous installment payments shall not be
required or permitted. Upon such Employee's subsequent termination of
employment, the provisions of this Section 6 shall again be applicable in the
same manner as if such Employee had not previously terminated employment and
been rehired.
(e) Status of Plan Deferral Accounts. Plan Deferral Accounts shall be
--------------------------------
utilized solely as a device for the measurement and determination of the amount
to be paid to Participants pursuant to this Plan. Plan Deferral Accounts shall
be for bookkeeping purposes only and shall not constitute or be treated as a
trust fund of any kind. All amounts payable in accordance with this Plan shall
constitute contractual,
13
<PAGE>
general, unsecured obligations of the various Employers. Participants shall have
only the status of general unsecured creditors of their respective Employers,
and the Plan shall constitute a mere promise by the Employers to make benefit
payments in the future. Nothing contained in this Plan shall be deemed to create
a trust of any kind or as creating any fiduciary relationship.
7. PAYMENTS FROM A GRANTOR TRUST
Each Employer may establish a grantor trust or trusts (within the meaning
of sections 671, et. seq., of the Code), for the benefit of Participants under
-------
the Plan in compliance with guidance of the Internal Revenue Service with
respect to such trusts as in effect from time to time. The creation of any such
trust shall not cause the Plan to be other than "unfunded" for federal income
tax purposes or Title I of ERISA. Each Employer shall be treated as grantor of
such trust, and the applicable trust agreement shall provide that its assets
shall be used upon the insolvency of an Employer to satisfy claims of the
Employer's general creditors. A contribution to such trust in a year shall not
create any obligation of the Employers to contribute to such trust in any
subsequent year. To the extent any benefits payable under the Plan are paid
from a grantor trust, the Employers' contractual obligations, if any, shall be
reduced accordingly.
8. PLAN ADMINISTRATOR
The Plan Administrator shall have the power and duty to do all things and
take all actions as it may deem necessary or appropriate to effect the intent
and purposes of the Plan not inconsistent with any of the provisions hereof,
whether or not such powers and
14
<PAGE>
duties are specifically set forth herein, and, by way of explanation and not
limitation of the foregoing, the Plan Administrator shall have the sole and
absolute discretion to:
(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 and interpret the Plan, which construction and
interpretation shall be final and binding upon all parties;
(iii) determine the right of any Participant to a benefit under the
Plan, or the right of any Employee to participate in the Plan; and
(iv) 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 Plan Administrator, including determinations
with respect to claims of Participants or Designated Beneficiaries made in
accordance with Section 10(g) hereof, shall be final and binding upon all
parties.
9. TERMINATION AND AMENDMENT
The Company, by action of its Board of Directors, has delegated to the Plan
Administrator the authority to amend the Plan to the extent any such amendments
are determined by the Plan Administrator to be necessary or appropriate to cause
the Plan to result in the deferral of Compensation for federal income tax
purposes or are estimated to increase the annual cost of the Plan by not more
than $1,000,000. No waiver or modification of this Plan or any covenant,
condition or limitation shall be valid unless in writing and adopted in
accordance with the Plan. The Board of Directors reserves the
15
<PAGE>
right to terminate the Plan at any time. Notwithstanding the foregoing, neither
the termination, revocation nor amendment of the Plan shall, without the written
approval of the Participants, 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. Upon termination of the Plan, the Plan
Administrator shall determine the time and manner for distribution of
Participant Plan Deferral Accounts.
10. MISCELLANEOUS PROVISIONS
(a) Adoption by Affiliates. An Affiliate of the Company may, with the
----------------------
written consent of the Plan Administrator, become an Employer under the Plan by
adopting a resolution to participate in the Plan and delivering such resolution
to the Plan Administrator. Any Employer may cease to be an Employer by adopting
a resolution to such effect, provided, however, that no such withdrawal shall
-------- -------
adversely affect the rights hereunder of Participants employed by such Employer.
By adopting the Plan, each Employer shall be deemed to have appointed the
Company and the Plan Administrator as its agent to carry out the duties and
responsibilities assigned by the Plan to the Company and the Plan Administrator,
respectively.
(b) Other Company Plans. The Plan shall supersede and replace any
-------------------
prior nonqualified deferred compensation plan or plans heretofore adopted or
maintained by the Company or its affiliates with respect to which any amounts
are credited to Plan
16
<PAGE>
Deferral Accounts for Eligible Employees. Except to the extent provided in the
preceding sentence, 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, agreement, or voluntary pension, profit sharing or other
compensation plan of the Company or its affiliates, whether funded or unfunded,
and this Plan shall not affect or impair the rights or obligations of the
Company, its Affiliates or a Participant under any other such contract,
arrangement, or voluntary pension, profit sharing or other deferred compensation
plan.
(c) Separability. If any term or condition of the Plan is 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.
(d) Continued Employment. Neither the establishment of the Plan, any
--------------------
provisions of the Plan, nor any action of the Plan Administrator shall be held
or construed to confer upon any Participant the right to a continuation of
employment with the Company, any Employer or any of their affiliates. The
Employers 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.
(e) Incapacity. If the Plan Administrator determines that a
----------
Participant or Beneficiary is unable to care for his or her affairs because of
illness or accident, or is a
17
<PAGE>
minor, any benefit due to such Participant or Beneficiary under the Plan may be
paid to his or her spouse, child, parent, or any other person deemed by the Plan
Administrator to have incurred expenses for such Participant or Beneficiary
(including a duly appointed guardian, Plan Administrator, or other legal
representative), and any such payment shall be a complete discharge of the
Company's obligation hereunder.
(f) 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.
(g) Claims. If any Participant or Beneficiary believes he or she is
------
entitled to benefits in an amount greater than those being received, the
Participant or Beneficiary may file a claim with the Plan Administrator. Such a
claim shall be in writing and state the nature of the claim, the facts
supporting the claim, the amount claimed and the address of the claimant. The
Plan Administrator shall review the claim, and unless special circumstances
require an extension of time, within 90 days after receipt of the claim, give
written notice by registered or certified mail to the claimant of its decision
with respect to the claim. If special circumstances require an extension of
time, the claimant shall be so advised in writing within the initial 90-day
period and in no event shall such an extension exceed 90 days. The notice of
the decision with respect to the claim shall be written in a manner calculated
to be understood by the claimant and, if the claim is wholly or partially
denied, set forth the specific reasons for the denial, specific
18
<PAGE>
references to the pertinent Plan provisions on which the denial is based, a
description of any additional material or information necessary for the claimant
to perfect the claim, an explanation of why such material or information is
necessary and an explanation of the claim review procedures under the Plan. The
claimant shall be advised that he or his duly authorized representative may
request a review by the Plan Administrator of the denial by filing with the Plan
Administrator, within 60 days after notice of the denial has been received by
the claimant, a written request for such review.
A Participant or Designated Beneficiary whose claim for benefits has been
denied may request review by the Plan Administrator for the denied claim by
notifying the Plan Administrator in writing within 60 days after receipt of the
notification of the claim denial. As part of said review procedure, the
claimant or his or her authorized representative may review pertinent documents
and submit issues and comments to the Plan Administrator in writing. The Plan
Administrator 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 60-day period
as possible, but no 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.
19
<PAGE>
(h) Withholding and Tax Consequences. The Participant or the
--------------------------------
Designated Beneficiary shall make appropriate arrangements with the Company for
satisfaction of any federal, state, or local income tax withholding requirement
and Social Security or other tax requirement 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. The Company shall not be responsible for or guaranty the tax
effects of the Plan or the distributions therefrom. In particular, the Plan
shall not be interpreted as any guaranty by the Company that amounts credited to
Plan Deferral Accounts are excludable from Participants' gross incomes for
federal, state or local income tax purposes or that any other particular tax
consequences will result from participation in or distributions from the Plan.
(i) Nonalienation of Benefits. No benefit under the Plan shall be
-------------------------
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance or charge, including for the support of any spouse, and any
attempt to do so shall be void, nor shall the Plan, the Employers nor any such
benefit be in any manner liable for or subject to garnishment, attachment,
execution of levy, or liability for or subject to the debts, contracts,
liabilities, engagements or torts of a Participant or Designated Beneficiary.
(j) Successors and Assigns. The rights and obligations of
----------------------
Participants shall inure to the benefit of their heirs and personal
representatives, and their rights and
20
<PAGE>
obligations of the Employers shall inure to the benefit of and be binding upon
any successor to each such Employer. Upon the approval of the Board of
Directors, the assets and liabilities of the Plan with respect to any Employer
may be transferred to any successor thereto that agrees to assume and accept
such liabilities and assets.
IN WITNESS WHEREOF, the First Data Corporation Employee Benefits
Administration and Investment Committee, having been delegated specific
authority by the Compensation and Benefits Committee of the First Data
Corporation Board of Directors to adopt and execute this Plan on behalf of First
Data Corporation, hereby executes this Plan on this 10th day of November 1999,
effective as of January 1, 2000.
First Data Corporation
By: /s/ Janet Harris
----------------
Chair, First Data Corporation
Employee Benefits
Administration and
Investment Committee
21
<PAGE>
Exhibit 5
November 10, 1999
Board of Directors
First Data Corporation
5660 New Northside Drive, Suite 1400
Atlanta, Georgia 30328
RE: First Data Corporation
Registration Statement on Form S-8
Dear Gentlemen and Lady:
As Senior Counsel of First Data Corporation, a Delaware corporation (the
"Corporation"), I have participated in the preparation and the filing by the
Corporation of a Registration Statement on Form S-8 (the "Registration
Statement") relating to the registration under the Securities Act of 1933, as
amended, of $30,000,000 of the Corporation's deferred compensation obligations
(the "Obligations"), which are issuable under the First Data Corporation
Supplemental Savings Plan 2000 (the "Plan") effective as of January 1, 2000.
The Obligations were authorized for issuance, offering and sale by the Board of
Directors of the Corporation by resolutions duly adopted on November 10, 1999.
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 Corporation.
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 Obligations 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/ Heidi J. Kesinger
Heidi J. Kesinger
Senior Counsel
<PAGE>
Exhibit 15
November 8, 1999
Stockholders and Board of Directors
First Data Corporation
We are aware of the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Supplemental Savings Plan 2000 of First Data
Corporation of our reports dated April 23, 1999 and July 26, 1999 relating to
the unaudited consolidated interim financial statements of First Data
Corporation which are included in its Form 10-Q for the quarters ended March 31,
1999 and June 30, 1999.
Pursuant to Rule 436(c) of the Securities Act of 1933 our reports are not a part
of the registration statements 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
Atlanta, Georgia
<PAGE>
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Supplemental Savings Plan 2000 of First Data
Corporation of our report dated January 28, 1999, with respect to the
consolidated financial statements and schedule included in its Annual Report
(Form 10-K) for the year ended December 31, 1998.
/s/ Ernst & Young LLP
Ernst & Young LLP
Atlanta, Georgia
November 8, 1999
