<PAGE>
As filed with the Securities and Exchange Commission on August 20, 1999.
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)
5660 New Northside Drive
Suite 1400
Atlanta, Georgia 30328-5800
(Address of principal executive offices) (Zip code)
First Data Corporation Salary Deferral Plan
(Full title of the Plan)
Michael T. Whealy, Esquire
General Counsel
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>
<CAPTION>
====================================================================================================
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
- ------------------------------ -------------- ---------------- ---------------- -------------
<S> <C> <C> <C> <C>
Salary Deferral Plan Deferred $ 3,000,000 100% $ 3,000,000 $ 834
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 First Data Corporation Salary Deferral 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 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 Salary Deferral Plan (the "Plan"),
the Registrant provides 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") are unsecured general
obligations of the Registrant, and rank equally with other unsecured and
unsubordinated indebtedness of the Registrant that is outstanding from time to
time. The total amount of outstanding Obligations, including interest, was
$833,664.67 on June 30, 1999. 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
<PAGE>
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.
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 accrue interest at an
annual rate that is adjusted on January 1 of each year to equal the average two-
year U.S. Treasury Bill rate for the 60-day period immediately preceding the
adjustment date. 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 either 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 participates in the Registrant's Long-Term Incentive Plan and has
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
<PAGE>
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 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.
<PAGE>
Item 8. Exhibits
--------
Exhibit
Number Description of Exhibit
- ------ ----------------------
4 First Data Corporation Salary Deferral Plan
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).
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;
<PAGE>
Provided, however, that paragraphs (1) (i) and (1) (ii) above do not apply if
- -------- -------
the Registration Statement is on Form S-3, Form S-8 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The 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
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 August 20, 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 either of them, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement, and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or the substitutes or substitute of any of them, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Henry C. Duques Chairman of the Board and August 20, 1999
- -----------------------
Henry C. Duques Chief Executive Officer
/s/ Lee Adrean Chief Financial Officer August 20, 1999
- -----------------------
Lee Adrean (Principal Financial Officer)
<PAGE>
Signature Title Date
--------- ----- ----
/s/ Jeff Holtz Vice President and Corporate August 20, 1999
- -----------------------
Jeff Holtz Controller
(Principal Accounting Officer)
/s/ Ben Burdetsky Director August 20, 1999
- -------------------------
Ben Burdetsky
/s/ Courtney F. Jones Director August 20, 1999
- -------------------------
Courtney F. Jones
/s/ Robert J. Levenson Director August 20, 1999
- -------------------------
Robert J. Levenson
/s/ James D. Robinson Director August 20, 1999
- -------------------------
James D. Robinson III
/s/ Charles T. Russell Director August 20, 1999
- -------------------------
Charles T. Russell
/s/ Bernard L. Schwartz Director August 20, 1999
- -------------------------
Bernard L. Schwartz
/s/ Joan E. Spero Director August 20, 1999
- -------------------------
Joan E. Spero
/s/ Garen K. Staglin Director August 20, 1999
- -------------------------
Garen K. Staglin
<PAGE>
INDEX
-----
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------ ----------------------
4 First Data Corporation Salary Deferral Plan
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
SALARY DEFERRAL PLAN
<PAGE>
TABLE OF CONTENTS
-----------------
ARTICLE I
Definitions............................................. 1
ARTICLE II
Administration.......................................... 4
ARTICLE III
Participation........................................... 6
ARTICLE IV
Deferred Compensation Accounts.......................... 10
ARTICLE V
Vesting................................................. 12
ARTICLE VI
Payment of Deferred Compensation
Withdrawals............................................. 12
ARTICLE VII
Amendment and Termination............................... 14
ARTICLE VIII
General Provisions...................................... 14
<PAGE>
ARTICLE I
---------
Definitions
-----------
As used in the Plan, unless the context requires otherwise, the following terms
shall have the meanings hereinafter set forth:
1.1 "Board of Directors" means the Board of Directors of the Company, as
constituted from time to time.
1.2 "Committee" means the Compensation Committee of the Board of Directors of
the Company, as such committee is constituted from time to time, which
administers the Plan in accordance with ARTICLE II hereof. If at any time
no such Compensation Committee of the Board of Directors shall be in
office, then the functions of the Committee shall be exercised by the
Board of Directors.
1.3 "Company" means First Data Corporation, a Delaware corporation, and its
successors and assigns.
1.4 "Deferred Compensation Account" means the account maintained under the
Plan for a Participant for each Plan Year.
1.5 "Disability" means termination of a Participant's employment with the
Employer by reason of total and permanent disability as determined by the
Committee; provided,
1
<PAGE>
that a Participant shall be considered to be totally and permanently
disabled only if, as a result of bodily injury or disease, the
Participant is prevented from engaging in any gainful occupation or
employment for which he is reasonably suited by virtue of his education,
capabilities, training and experience, and at such time is entitled to
receive disability benefits under the Social Security Act.
1.6 "Effective Date" means December 15, 1992.
1.7 "Eligible Employee" means an officer or other key employee of the
Employer, designated by the Committee as eligible to participate in the
Plan.
1.8 "Employer" means the Company or any Subsidiary thereof which shall be
designated by the Board of Directors and by the board of directors of the
Subsidiary as a participating employer under the Plan.
1.9 "Hardship" means severe financial hardship resulting from an
unanticipated emergency, including, but not limited to, illness or
accident involving the Participant or his dependents, or other severe
hardship.
1.10 "Installments" means substantially equal installments payable annually as
of the date chosen and as of the anniversary thereof in each succeeding
year over a period certain not longer than 15 years.
2
<PAGE>
1.11 "Interest Equivalents" on the amount credited to an Interest Equivalents
Account shall have the meaning set forth in Section 4.3 hereof.
1.12 "Interest Equivalents Account" means that portion (or all) of a Deferred
Compensation Account for a Plan Year, which the Participant elects to be
credited with Interest Equivalents under the Plan.
1.13 "Participant" for any Plan Year means an Eligible Employee who elects to
participate in the Plan in accordance with ARTICLE III hereof.
1.14 "Plan" means the First Data Corporation Salary Deferral Plan, as set
forth herein and as hereafter amended from time to time.
1.15 "Plan Year" means the calendar year beginning on the Effective Date and
each succeeding calendar year thereafter in which the Plan remains in
effect.
1.16 "Retirement" means a Participant's retirement from employment with the
Employer under the provisions of an approved retirement program of the
Company or a Subsidiary (or such other plan as may be approved by the
Committee, in its sole discretion, for this purpose).
3
<PAGE>
1.17 "Separation from Service" means termination of a Participant's employment
with the Employer by reason of Retirement, Disability, death or
otherwise.
1.18 "Subsidiary" means any corporation at least fifty percent (50%) of the
voting rights, value or securities of which is owned or controlled,
directly or indirectly, by the Company.
The masculine pronoun shall be deemed to include the feminine, and the singular
number shall be deemed to include the plural, unless a different meaning is
plainly required by the context.
ARTICLE II
----------
Administration
--------------
2.1 The Plan shall be administered by the Committee. The Committee shall have
all the powers vested in it by the terms of the Plan, such powers to
include exclusive authority (within the limitations described herein) to
select the Eligible Employees under the Plan, to determine the terms and
conditions of the salary deferrals under the Plan, and to prescribe the
form of the instruments relating to the salary deferrals under the Plan.
2.2 Subject to the limitations of the Plan, the Committee shall be authorized
to interpret the Plan, to establish, rescind and amend the rules for the
administration of the Plan and the transaction of its business, and to
make any other determinations which it
4
<PAGE>
believes necessary or advisable for the administration of the Plan. The
Committee may correct any defect, supply any omission or reconcile any
inconsistency in the Plan in the manner and to the extent the Committee
deems desirable to carry it into effect. Any decision of the Committee in
the administration of the Plan shall be final and conclusive. The
Company, and the Employer and the Participant involved in any controversy
under the Plan, and any successors in interest thereof and any and all
other persons claiming under or through any of them, shall be
conclusively bound by such decision.
2.3 Any act which the Plan authorizes or requires the Committee to do may be
done only by a majority of its members in office, except that the members
of the Committee may authorize one or more of their number to execute or
deliver any instrument, make any payment or perform any other act which
the Plan authorizes or requires the Committee to do. The action of such
majority, expressed from time to time by a vote at a meeting or in
writing without a meeting, shall constitute the action of the Committee
and shall have the same effect for all purposes as if assented to by all
members of the Committee at the time in office.
2.4 The Committee may employ or retain agents to perform such clerical,
accounting, and other services as they may deem necessary or desirable in
carrying out the provisions of the Plan.
5
<PAGE>
2.5 The Company shall indemnify and hold harmless each member of the
Committee against all expenses and liabilities arising out of membership
on the Committee, excepting only expenses and liabilities arising from
his own gross negligence or willful misconduct (as determined by the
Board of Directors), or as expressly provided by statute.
ARTICLE III
-----------
Participation
-------------
3.1(a) Prior to the Effective Date, each Eligible Employee may elect to
participate in the Plan for the Plan Year commencing on the Effective
Date by written notice to the Committee on a form furnished by it.
Subject to the provisions of Section 3.2 hereof, in order to participate
in the Plan each such Eligible Employee must elect in such notice to
defer part or all of his Salary and/or bonuses otherwise payable or
attributable to such Plan Year.
(b) Prior to the first day of each Plan Year beginning after the Effective
Date or at such other date as the Committee shall determine, each
Eligible Employee may elect to participate in the Plan for such Plan Year
by written notice to the Committee on a form furnished by it. Subject to
the provisions of Section 3.2 hereof, in order to participate in the Plan
each such Eligible Employee must elect in such notice to defer part or
all of his Salary and/or bonuses for such Plan Year.
6
<PAGE>
(c) Notwithstanding the provisions of Section 3.1(a) and (b) hereof, an
Eligible Employee who is first employed by the Employer during any Plan
Year may elect to participate in the Plan for such Plan Year by written
notice to the Committee (on a form furnished by it) not later than 30
days after his date of employment. Subject to the provisions of Section
3.2 hereof, in order to participate in the Plan the Eligible Employee
must elect in such notice to defer part or all of his Salary or bonuses
for such Plan Year.
(d) Notwithstanding the other provisions of this Section 3.1, upon
application of a Participant and approval thereof by the Committee, the
Participant may at any time during a Plan Year revoke, by reason of
Hardship, his election to participate in the Plan for such Plan Year.
Upon such revocation, any amount credited to his Deferred Compensation
Account for such Plan Year, minus any previously credited Income
Equivalents thereon (which shall be forfeited), shall be paid to him as
soon as practicable thereafter.
3.2(a) The election for any Plan Year pursuant to Section 3.1 hereof may defer
any specified dollar amount out of the Participant's Salary and/or any
specified percentages of the Participant's Salary and/or bonuses, unless
otherwise determined by the Committee in its sole discretion.
(b) Notwithstanding the provisions of Section 3.2(a) hereof:
7
<PAGE>
(i) the minimum amount which may be deferred by a Participant for any
Plan Year is $5,000, unless otherwise determined by the Committee in
its sole discretion; and
(ii) the maximum amount which may be deferred by a Participant for any
Plan Year is 100% of his Salary and bonuses for such Plan Year,
unless otherwise determined by the Committee in its sole discretion;
provided, however, that if notified by his Employer that it is
necessary, a Participant shall make prompt payment to his Employer
of any and all amounts required for maintenance of benefit plans
coverage and of other required amounts.
(c) In the event that
(i) a Participant's election to participate for any Plan Year does not
result in a deferral of at least the minimum amount determined under
Section 3.2(b)(i) hereof or
(ii) a Participant's Separation from Service occurs prior to the end of
any Plan Year,
his election to participate in the Plan for such Plan Year shall be
deemed revoked and any amount credited to his Deferred Compensation
Account for such Plan Year, minus (for Separation from Service occurring
other than by reason of death, Disability or Retirement) any previously
credited Interest Equivalents for such Plan Year shall be
8
<PAGE>
paid to him (or the legal representatives of his estate) as soon as
practicable thereafter, unless otherwise determined by the Committee in
its sole discretion.
3.3 The amount which the Participant elected to defer under Section 3.1
hereof shall be withheld from his Salary and/or bonuses in accordance
with such rules and procedures as shall be established by the Committee.
3.4 Notwithstanding anything to the contrary contained herein, a Participant
may elect irrevocably, on a form to be provided by the Committee
therefore, at any time prior to April 15, 1993 to defer all or any
portion of his or her Salary that would otherwise have been paid to such
Participant after May 15, 1993 but prior to January 1, 1994. An election
under this Section 3.4 shall be permissible only if the aggregate amount
of compensation deferred under this election and under any previous
election with respect to 1993 income results in a deferral of
compensation that meets the minimum amount requirements of the Plan.
3.5(a) Notwithstanding anything to the contrary contained herein, any employee
of the Company who was a participant in the American Express Salary
Deferral Plan ( the "American Express Plan") and who is entitled to a
payment from the American Express Company under the American Express Plan
during the 1994 calendar year shall be permitted to participate in the
Deferred Plan in accordance with the provisions of this Section 3.5 and
Section 4.4 of the Deferred Plan.
9
<PAGE>
Each employee permitted to participate in the Deferred Plan under Section
3.5(a) of the Deferred Plan may elect, prior to December 31, 1993, to
defer all or any portion of his or her Salary and/or bonuses for the Plan
Year commencing January 1, 1994 up to the amount such employee shall
receive during such Plan Year as a payment from the American Express Plan
by filing a written notice with the Committee on a form furnished by it
for this purpose on which such employee shall specify the percentage or
dollar amount of Salary and/or bonuses to be deferred, and shall indicate
such employee's election for payment of such deferred amounts consistent
with the requirements of Article VI of the Deferred Plan.
ARTICLE IV
----------
Deferred Compensation Accounts
------------------------------
4.1 The Committee shall establish and maintain a Deferred Compensation
Account for each Participant for each Plan Year commencing on and after
the Effective Date.
4.2 The Committee shall cause to be credited to each Participant's Deferred
Compensation Account for each calendar quarter of a Plan Year (i) the
amount or amounts which he elected to defer in accordance with Section
3.1 hereof, as of the effective date of deferral, and (ii) such
additional amounts of Interest Equivalents as may be credited to the
Deferred Compensation Account until the date or dates of payment, the
availability
10
<PAGE>
and the terms and conditions of which are to be determined by the
Committee in its sole discretion.
4.3 Interest Equivalents shall be credited on amounts credited to the
applicable portion, if any, of each Deferred Compensation Account as of
the last day of each Plan Year from the effective date of deferral to the
day as of which such amounts are distributed to the Participant, as
follows:
at an annual rate equal to the average two-year U.S. Treasury Bill rate
for the 60-day period ending on December 31 immediately prior to the
applicable Plan Year, and such Interest Equivalents shall be compounded
quarterly commencing with the first day of each calendar quarter of each
Plan Year provided, however, that if a distribution of a lump sum is made
under Section 6.2 hereof, no Interest Equivalents shall be credited to
the Participant's Deferred Compensation Accounts after the last day of
the calendar quarter in which his Separation from Service occurred, and
provided further that if Section 3.2(c) hereof is applicable, no Interest
Equivalents shall be credited to the Participant's Deferred Compensation
Account for the applicable Plan Year.
4.4 Any employee permitted to participate in the Deferred Plan under Section
3.5 shall have a separate Deferred Compensation Account which shall be
credited with the amounts such employee defers under Section 3.5.
Notwithstanding anything to the contrary contained herein, the Deferred
Compensation Account maintained under this
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Section 4.4 shall be (A) credited with Interest Equivalents as of the last day
of each calendar quarter from the effective date of the deferral to the day as
of which such amounts are distributed to the employee equal to the greater of
(a) the Interest Equivalents which would be credited under Section 4.3 of the
Deferred Plan or (b) the Interest Equivalents that would have been credited
under the American Express Plan and (B) otherwise be subject to the provisions
of the Deferred Plan.
ARTICLE V
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Vesting
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5.1 Except as otherwise provided herein, a Participant shall have a fully
vested interest in his Deferred Compensation Account for any Plan Year at
all times.
ARTICLE VI
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Payment of Deferred Compensation
--------------------------------
6.1 At the time an Eligible Employee elects to become a Participant for any
Plan Year, he shall also elect in writing to the Committee on a form
furnished by it, to have his Deferred Compensation Account for such Plan
Year paid in a lump sum or in Installments commencing as of a date or an
event occurring not earlier than the fifth anniversary of the last day of
the applicable Plan Year, unless otherwise determined by the Committee in
its sole discretion.
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6.2 Subject to the provisions of Section 3.2(c), following a Participant's
Separation from Service or such other date as the Participant shall have
elected, the amount credited to his Deferred Compensation Account for
each Plan Year shall be paid to him (or the legal representatives of his
estate, in the case of his death) in accordance with his election under
Section 6.1(a) hereof; provided, however, that if a Participant's
Separation from Service occurs other than by reason of Retirement,
Disability or death, payment of the amount credited to his Deferred
Compensation Account for all Plan Years shall be made in a lump sum as
soon as practicable following his Separation from Service.
6.3 Upon application of any Participant and upon approval thereof by the
Committee, the Participant may withdraw, by reason of Hardship, part or
all of his Deferred Compensation Account for any or all Plan Years,
subject to the provisions of Section 3.1(d) hereof.
6.4 For the purpose of this ARTICLE VI, the amount credited to a
Participant's Deferred Compensation Account as of any date shall mean the
amount initially credited to such account under Section 4.2 hereof, as of
the last day of the applicable month, plus Interest Equivalents credited
thereon as determined in accordance with Section 4.3 hereof from such
date to the date in question, reduced by the amount of any prior
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<PAGE>
withdrawals or installment payments made to the Participant (or the legal
representatives of his estate).
6.5 The Employer shall deduct and withhold from any payments under the Plan
any federal, state, local or foreign income or other taxes which the
Committee determines are required to be deducted or withheld pursuant to
the laws of any jurisdiction whatsoever. The Employer shall not be
required to make any payments under the Plan to the legal representatives
of the estate of a Participant until such legal representatives shall
have furnished evidence satisfactory to the Committee of the payment or
the provision for the payment of all estate, transfer, inheritance and
other taxes, if any, which may be payable with respect thereto.
ARTICLE VII
-----------
Amendment and Termination
-------------------------
7.1 The Committee may, at any time and from time to time modify or amend any
or all of the provisions of the Plan or may at any time terminate the
Plan.
ARTICLE VIII
------------
General Provisions
------------------
8.1 If a Subsidiary of the Company wishes to participate in the Plan and its
participation shall have been approved by the Board of Directors, the
board of directors of the Subsidiary
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shall adopt a resolution in form and substance satisfactory to the
Committee authorizing participation by the Subsidiary in the Plan with
respect to its employees. A Subsidiary participating in the Plan may
cease to be a participating employer at any time by action of the Board
of Directors or by action of the board of directors of such Subsidiary,
which latter action shall be effective not earlier than the date of
delivery to the Secretary of the Company of a certified copy of a
resolution of the Subsidiary's board of directors taking such action. If
the participation in the Plan of a Subsidiary shall terminate, such
termination shall not relieve it of any obligations theretofore incurred
by it under the Plan, except with the approval of the Board of Directors.
8.2 No Participant or Eligible Employee shall have any right to any payment
or benefit hereunder except to the extent provided in the Plan.
8.3 The employment rights of any Participant or Eligible Employee shall not
be enlarged, guaranteed or affected by reason of any of the provisions of
the Plan. The Employer shall have the right to dismiss any Participant or
Eligible Employee at any time with or without cause, and without
liability for the effect which such dismissal might have upon him as a
Participant or Eligible Employee under the Plan.
15
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8.4 A Participant's rights to payments under the Plan may not be assigned or
transferred in whole or in part either directly or by operation of law or
otherwise (except in the event of a Participant's death) including, but
not by way of limitation, execution, levy, garnishment, attachment,
pledge, bankruptcy or in any other manner, and no such right of any
Participant under the Plan shall be subject to any obligation or
liability of such Participant. In the event that any Participant under
the Plan becomes bankrupt or attempts to assign or transfer any such
payment or a part thereof, then all such payments due him shall cease,
and, in that event, the Employer shall hold and apply the same to or for
his benefit or that of his spouse, children, or other dependents, or any
of them, in such manner and in such proportions as the Committee may deem
proper, in its sole discretion.
8.5 If the Committee determines that any person whom a payment is due
hereunder is unable to care for his affairs because of illness, accident,
imprisonment, minority or other incapacity, the Committee shall have the
power to cause the payments becoming due to such person to be made to
another for the benefit of the minor or incompetent, without
responsibility of the Company, the Employer or the Committee to see to
the application of such payment, unless claim prior to such payment is
made therefore by a duly appointed guardian, committee or other legal
representative. Payments made pursuant to such power shall operate as a
complete discharge of the Company, the Employer, the Committee and each
member of the Committee of all liability under the Plan therefore.
16
<PAGE>
8.6 The provisions of this Plan shall be binding upon each Participant as a
consequence of his election to participate in the Plan, the Company and
the Employer, and their respective heirs, executors, administrators,
successors and assigns.
8.7 Any election made or notice given by a Participant pursuant to the Plan
shall be in writing to the Committee on a form furnished by it, or to
such representative as may be designated by it for such purpose, and
shall be deemed to have been made or given on the date received by the
Committee or its representative.
8.8 By accepting any benefits under the Plan, each Participant and each
person claiming under or through him, shall be conclusively deemed to
have indicated his acceptance and ratification of, and consent to, any
action taken or not taken or decision made under the Plan by the Company,
the Employer, the Board of Directors or the Committee.
8.9 The Plan shall be unfunded and all payments under the Plan shall be
payable out of the general assets of the Employer. The Employer shall not
be required to establish any special or separate fund or to make any
other segregation of assets to assure the payment of any amount under the
Plan. The obligation of any Employer under the Plan to make payments when
due is merely contractual and no amount credited to a Deferred
Compensation Account of a Participant on the books of any Employer shall
17
<PAGE>
be deemed to be held in a trust, escrow or similar fiduciary capacity for
such Participant or for his legal representatives. Any property held or
acquired by any Employer specifically for use under the Plan or otherwise
shall, unless and until transferred in accordance with the terms and
conditions of the Plan, be and at all times remain the property of such
Employer, irrespective of whether such securities or other property shall
at all times be and remain available for any corporate purpose. Rights to
payments under the Plan shall be neither subordinate to nor superior to
the claims of the Employer's general unsecured creditors.
8.10 The proportionate share of the costs and expenses of the Plan to be borne
by the Company and the Employers shall be determined each Plan Year by
the Committee in its sole discretion.
8.11 The validity of the Plan or of any of its provisions, and all actions
taken under the Plan, shall be determined under, and construed according
to, the laws of the State of Nebraska.
8.12 The invalidity or unenforceability of any one or more provisions of the
Plan shall not affect the validity or enforceability of any other
provision of the Plan, which shall remain in full force and effect.
18
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8.13 Notwithstanding anything in the Plan to the contrary, neither the Company
nor any of the other Employers nor any of their affiliates nor their
respective officers, directors, employees or agents, shall have any
liability to any Participant or Eligible Employee (or his heirs) under
the Plan or otherwise on account of any action taken, or not taken, in
good faith by any of the foregoing persons with respect to the business
or operations of the Company or any entity controlling, controlled by, or
under common control with the Company, notwithstanding the fact that any
such action or inaction in any way whatsoever may adversely affect
amounts which are accrued, credited or payable or any other rights or
benefits of a Participant or Eligible Employees (or his heirs) under the
Plan.
8.14 Claims. If, pursuant to the provisions of the Plan, the Committee denies
------
the claim of the Participant for benefits under the Plan, the Committee
shall provide written notice, within ninety (90) days after receipt of
the claim, setting forth in a manner calculated to be understood by the
claimant:
(a) the specific reasons for such denial;
(b) the specific reference to the Plan provisions on which the denial is
based;
(c) 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
19
<PAGE>
(d) an explanation of the Plan's claim review procedure and the time
limitations of this subsection applicable thereto.
The Participant whose claim for benefit has been denied may request
review by the Committee of the denied claim by notifying the Committee in
writing within sixty (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 sixty (60) days after receipt
of the request for review, unless special circumstances require an
extension of time, in which case decision shall be rendered as soon after
the sixty-day period as possible, but not later than one hundred and
twenty (120) days after receipt of the request for review. The decision
on review shall state the specific reasons therefore and the specific
Plan reference on which it is based.
8.15 Liabilities and Obligations Attributable to the American Express
----------------------------------------------------------------
Salary/Bonus Deferral Plans. The liabilities and obligations of the
---------------------------
Company attributable to Plan Participant deferrals under the American
Express Salary/Bonus Deferral Plans (the "AMEX Plans") which are carried
on the books of the Company or its predecessor and shall be administered
under the Plan in accordance with the terms and provisions of the Plan
notwithstanding anything in the AMEX Plans to the contrary.
20
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Exhibit 5
August 20, 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 $3,000,000 of the Corporation's deferred compensation obligations
(the "Obligations"), which are issuable under the First Data Corporation Salary
Deferral Plan (the "Plan") effective as of August 20, 1999. The Securities were
authorized for issuance, offering and sale by the Board of Directors of the
Corporation by resolutions duly adopted on November 13, 1992.
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 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/ Heidi J. Kesinger
Heidi J. Kesinger
Senior Counsel
<PAGE>
Exhibit 15
The Stockholders and Board of Directors
First Data Corporation
We are aware if the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Salary Deferral Plan 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 that are
included in its Forms 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 statement prepared or certified by accountants within the
meaning of Section 7 or 11 of the Securities Act of 1933.
/s/ Ernst & Young LLP
Atlanta, Georgia
August 19, 1999
<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 Salary Deferral Plan of First Data Corporation of our
report dated January 28, 1999, 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, 1998, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Atlanta, Georgia
August 19, 1999
