<PAGE>
As filed with the Securities and Exchange Commission on December 28, 1999.
Registration No.
================================================================================
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)
Western Union Financial Services, Inc. Retirement Savings Plan
for Bargaining Unit Employees
(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>
Amount Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Offering Price Aggregate Registration
to be Registered (1) Registered Per Security Offering Price Fee
- ---------------------------- ------------------ ---------------- ---------------- ------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 100,000 shares (2) $48.78125 (3) $4,878,125 $1,288
=====================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
(2) There is also being registered hereunder such additional undetermined number
of shares of Common Stock as may be required pursuant to the employee
benefit plan in the event of a stock split, stock dividend, or other similar
event.
(3) Calculated in accordance with Rule 457(h)(1) and (c) under the Securities
Act of 1933, solely for the purpose of computing the registration fee,
based upon the average of the high and low sale prices of the common stock,
$.01 par value, of First Data Corporation on the New York Stock Exchange on
December 21, 1999.
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
The following documents heretofore or hereafter filed with the Securities
and Exchange Commission by First Data Corporation (the "Registrant") or the
Western Union Financial Services, Inc. Retirement Savings Plan for Bargaining
Unit Employees (the "Plan") 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") and the Plan's Annual Report on Form 11-K for the year ending
December 31, 1999;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Registrant document
referred to in (a) above.
(c) the description of the common stock, par value $.01 per share, of the
Registrant (the "Common Stock") contained in the Registrant's Report on Form 8-A
(File No. 1-11073) filed March 24, 1992, filed under the Exchange Act.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act and all documents filed by the Plan pursuant to
Section 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
-------------------------
Not applicable.
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
<PAGE>
by Registrant and is a participant in various employee benefit plans offered to
employees of the Registrant. Ms. Kesinger also holds options to purchase shares
of the 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 Company limits the personal
liability of the directors of the Company for violations of their fiduciary
duty. This provision eliminates each director's liability to the Company or its
stockholders for monetary damages except to the extent provided by the DGCL (i)
for any breach of the director's duty of loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the DGCL providing for liability of directors for unlawful payment of dividends
or unlawful stock purchases or redemptions, or (iv) for any transaction from
which a director derived an improper benefit. The effect of this provision is
to eliminate the personal liability of directors for monetary damages for
actions involving a breach of their fiduciary duty of care, including any such
actions involving gross negligence.
The Restated Certificate of Incorporation of the Company also provides for
indemnification of the Company'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 Company
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 Company maintains insurance policies which provide
coverage for its officers and directors in certain situations where the Company
cannot directly indemnify such officers or directors. The rights of
indemnification discussed above are not exclusive of any other rights which a
director or officer may acquire in the future.
<PAGE>
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
Exhibit
Number Description of Exhibit
- ------ ----------------------
4.1 Registrant's Restated Certificate of Incorporation. (Incorporated by
reference to Exhibit 3 of the Registrant's Quarterly Report on
Form 10-Q for the three months ended September 30, 1995 dated November
13, 1995, Commission File No. 1-11073).
4.2 Registrant's By-laws. (Incorporated by reference to Exhibit 3 of the
Registrant's Quarterly Report on Form 10-Q for the three months ended
September 30, 1998, dated November 16, 1998, Commission File No.
1-11073).
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).
The Registrant undertakes that it will cause the Plan and any amendments
thereto to be submitted to the Internal Revenue Service ("IRS") in a timely
manner and will make all changes required by the IRS in order to qualify the
Plan.
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
<PAGE>
Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
Provided, however, that paragraphs (1) (i) and (1) (ii) above do not apply if
- -------- -------
the Registration Statement is on Form S-3, Form S-8 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of 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
Exchange Act and each filing of the Plan's annual report pursuant to Section
15(d) of the Exchange Act 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 December 28, 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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Henry C. Duques
- ---------------------------- Chairman of the Board and December 28, 1999
Henry C. Duques Chief Executive Officer
/s/ Lee Adrean
- ---------------------------- Chief Financial Officer December 28, 1999
Lee Adrean (Principal Financial Officer)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Jeff Holtz Vice President and Corporate December 28, 1999
- ---------------------------- Controller
Jeff Holtz (Principal Accounting Officer)
/s/ Ben Burdetsky
- ---------------------------- Director December 28, 1999
Ben Burdetsky
/s/ Courtney F. Jones
- ---------------------------- Director December 28, 1999
Courtney F. Jones
/s/ Robert J. Levenson
- ---------------------------- Director December 28, 1999
Robert J. Levenson
/s/ James D. Robinson III
- ---------------------------- Director December 28, 1999
James D. Robinson III
/s/ Charles T. Russell
- ---------------------------- Director December 28, 1999
Charles T. Russell
/s/ Bernard L. Schwartz
- ---------------------------- Director December 28, 1999
Bernard L. Schwartz
/s/ Joan E. Spero
- ---------------------------- Director December 28, 1999
Joan E. Spero
/s/ Garen K. Staglin
- ---------------------------- Director December 28, 1999
Garen K. Staglin
</TABLE>
<PAGE>
SIGNATURE - THE PLAN
Pursuant to the requirements of the Securities Act of 1933, the trustees
(or other persons who administer the employee benefit plan) have duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Englewood, State of Colorado, on
December 28, 1999.
WESTERN UNION FINANCIAL
SERVICES, INC. RETIREMENT
SAVINGS PLAN FOR BARGAINING
UNIT EMPLOYEES,
By: FIRST DATA CORPORATION
EMPLOYEE BENEFITS
ADMINISTRATION AND INVESTMENT
COMMITTEE, Plan Administrator
By: /s/ Janet Harris
---------------------------------
Janet Harris, Committee Chairperson
<PAGE>
INDEX
-----
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------ ----------------------
4.1 Registrant's Restated Certificate of Incorporation. (Incorporated by
reference to Exhibit 3 of the Registrant's Quarterly Report on
Form 10-Q for the three months ended September 30, 1995 dated November
13, 1995, Commission File No. 1-11073).
4.2 Registrant's By-laws. (Incorporated by reference to Exhibit 3 of the
Registrant's Quarterly Report on Form 10-Q for the three months ended
September 30, 1998, dated November 16, 1998, Commission File No.
1-11073).
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 5
FIRST
DATA
CORP.
December 28, 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 & Lady:
As Senior Counsel of First Data Corporation, a Delaware corporation (the
"Corporation"), I have participated in the preparation and filing by the Company
of a Registration Statement on Form S-8 (the "Registration Statement") relating
to the registration under the Securities Act of 1933, as amended, of 100,000
shares of the Corporation's common stock (the "Securities"), which are issuable
under the Western Union Financial Services, Inc. Retirement Savings Plan for
Bargaining Unit Employees (the "Plan") effective as of December 28, 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 Securities will be legally issued, fully paid and non-assessable when
(i) the Registration Statement shall have become effective under the
Securities Act of 1933, as amended, and (ii) such shares shall have been
duly issued and sold in the manner contemplated by the Plan.
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
6200 SOUTH QUEBEC STREET, ENGLEWOOD, CO 80111
<PAGE>
Exhibit 15
The Stockholders and Board of Directors
First Data Corporation
We are aware of the incorporation by reference in the Registration Statement on
Form S-8 of First Data Corporation ("the Company") pertaining to the Western
Union Financial Services, Inc. Retirement Savings Plan for Bargaining Unit
Employees of our reports dated April 23, 1999, July 26, 1999 and October 21,
1999 relating to the Company's unaudited consolidated interim financial
statements which are included in its Form 10-Q for the quarters ended March 31,
1999, June 30, 1999 and September 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
Atlanta, Georgia
December 27, 1999
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of First Data Corporation ("the Company") pertaining to the Western
Union Financial Services, Inc. Retirement Savings Plan for Bargaining Unit
Employees of our report dated January 28, 1999, with respect to the Company's
consolidated financial statements and schedule included in its Annual Report
(Form 10-K) for the year ended December 31, 1998.
/s/ Ernst & Young LLP
Atlanta, Georgia
December 27, 1999
