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As filed with the Securities and Exchange Commission on May 9, 1997
REGISTRATION NO. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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F.Y.I. INCORPORATED
(Exact name of Registrant as specified in its charter)
DELAWARE 75-2560895
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
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3232 MCKINNEY AVENUE
SUITE 900
DALLAS, TEXAS 75204
(214) 953-7552
(Address, including zip code, of principal executive offices)
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WARRANTS ISSUED TO DIRECTORS AND OFFICERS
(Full title of the Plan)
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ED H. BOWMAN, JR.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
F.Y.I. INCORPORATED
3232 MCKINNEY AVENUE, SUITE 900
DALLAS, TEXAS 75204
(214) 953-7552
(Name, address, and telephone number,
including area code, of agent for service)
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COPIES TO:
CHRISTOPHER T. JENSEN, ESQ. MARGOT T. LEBENBERG, ESQ.
MORGAN, LEWIS & BOCKIUS LLP VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
101 PARK AVENUE F.Y.I. INCORPORATED
NEW YORK, NEW YORK 10178 3232 MCKINNEY AVENUE
(212) 309-6000 SUITE 900
DALLAS, TEXAS 75204
(214) 953-7552
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE OFFERING AGGREGATE OFFERING AMOUNT OF
BE REGISTERED REGISTERED (1) PRICE PER SHARE PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per 115,000 shares $ 10.00 (2) $ 1,150,000.00 $ 348.48
share 50,000 shares $ 20.00 (2) $ 1,000,000.00 $ 303.03
100,000 shares $ 21.00 (2) $ 2,100,000.00 $ 636.36
Total: $ 1,287.87
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(1) Pursuant to Rule 416(a), the number of shares being registered shall be
adjusted to include any additional shares which may become issuable as a
result of stock splits, stock dividends, or similar transactions in
accordance with the anti-dilution provisions of the warrants granted to
the warrantholders.
(2) Computed pursuant to Rule 457 for the purpose of calculating the
registration fee, based upon the price at which outstanding warrants may
be exercised.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
*Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended, and the introductory
Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") by F.Y.I. Incorporated, a Delaware corporation (the
"Company"), are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, filed with the Commission on March 11, 1997;
(b) The Company's Current Report on Form 8-K, filed with the Commission on
April 9, 1997; and
(c) The description of the Company's Common Stock, registered under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), contained in
the Company's Registration Statement on Form S-1 (Registration No. 33-98608)
and incorporated by reference in the Company's Registration Statement on Form
8-A (File No. 0-27444), including any amendments or reports filed for the
purpose of updating such description.
In addition, all reports and other documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of filing of such reports and documents.
Any statement contained herein, or in a document, all or a portion of which
is incorporated or deemed to be incorporated by reference herein, 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 document which also is or is deemed to be incorporated by reference
herein 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.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's By-Laws provide that the Company shall, to the fullest extent
permitted by Section 145 of the General Corporation Law of the State of
Delaware, as amended from time to time, indemnify all persons whom it may
indemnify pursuant thereto.
Section 145 of the General Corporation Law of the State of Delaware, as
amended, permits a corporation, under specified circumstances, to indemnify its
directors, officers, employees or agents against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlements actually and reasonably
incurred by them in connection with any action, suit or proceeding brought by
third parties by reason of the fact that they were or are directors, officers,
employees or agents of the corporation, if such directors, officers, employees
or agents acted in good faith and in a manner they reasonably believed to be in
or not opposed to the best interests of the corporation and, with respect to
any criminal action or proceeding, had no reason to believe their conduct was
unlawful. In an action by or in the right of the corporation, indemnification
may be made only for expenses actually and reasonably incurred by directors,
officers, employees or agents in connection with the defense or settlement of
an action or suit, and only with respect to a matter as to which they shall
have acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interest of the corporation, except that no
indemnification shall be made if such person shall have been adjudged liable to
the corporation, unless and only to the extent that the court in which the
action or suit was brought shall determine upon application that the defendant
directors, officers, employees or agents are fairly and reasonably entitled to
indemnify for such expenses despite such adjudication of liability.
Article Seven of the Company's Amended and Restated Certificate of
Incorporation provides that the Company's directors will not be personally
liable to the Company or its stockholders for monetary damages resulting from
breaches of their fiduciary duty as directors except (a) for any breach of the
duty of loyalty to the Company or its stockholders, (b) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (c) under Section 174 of the General Corporation Law of the
State of Delaware, as amended, which makes directors liable for unlawful
dividends or unlawful stock repurchases or redemptions or (d) for transactions
from which directors derive improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit Description
4.1 Amended and Restated Certificate of Incorporation of the
Company (Incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1 (Registration No.
33-98608))
4.2 By-Laws of the Company (Incorporated by reference to Exhibit
3.2 to the Company's Registration Statement on Form S-1
(Registration No. 33-98608))
4.3 Form of certificate evidencing ownership of Common Stock of
the Company (Incorporated by reference to Exhibit 4.2 to the
Company's Registration Statement on Form S-1 (Registration No.
33-98608))
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4.4 Amended and Restated Warrant issued to Ed H. Bowman, Jr. dated
November 16, 1995, as amended and restated as of March 31,
1997 (Incorporated by reference to Exhibit 10.26 to the
Registrant's Current Report on Form 8-K filed on April 9, 1997)
4.5 Amended and Restated Warrant issued to Timothy J. Barker dated
November 16, 1995, as amended and restated as of March 31,
1997 (Incorporated by reference to Exhibit 10.28 to the
Registrant's Current Report on Form 8-K filed on April 9, 1997)
4.6 Amended and Restated Warrant issued to Ed H. Bowman, Jr. dated
May 21, 1996, as amended and restated as of March 31, 1997
(Incorporated by reference to Exhibit 10.27 to the
Registrant's Current Report on Form 8-K filed on April 9, 1997)
4.7 Amended and Restated Employment Agreement between F.Y.I.
Incorporated and Ed H. Bowman, Jr. (Incorporated by reference
to Exhibit 10.25 to the Registrant's Current Report on Form 8-K
filed on April 9, 1997)
5 Opinion of Morgan, Lewis & Bockius LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Elko, Fischer, McCabe & Rudman, Ltd.
23.3 Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5)
24 Powers of Attorney (included on signature pages hereof)
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this 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) of the Securities Act if, in the aggregate, the changes
in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration
statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
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provided, however, that paragraphs (a)(1)(i) and (a)(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 Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post- effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the 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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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.
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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 Dallas, Texas on May 9, 1997.
F.Y.I. INCORPORATED
By: /s/ Ed H. Bowman, Jr.
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Ed H. Bowman, Jr.
President and Chief Executive Officer
POWERS OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date or dates indicated. Each person whose signature
appears below hereby authorizes and constitutes Ed H. Bowman, Jr. and Margot T.
Lebenberg, and each of them singly, his true and lawful attorneys-in-fact with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of F.Y.I. Incorporated) to sign and file any and all amendments
(including post-effective amendments) to this Registration Statement with all
exhibits thereto, and other documents in connection therewith with the
Securities and Exchange Commission, and he hereby ratifies and confirms all
that said attorneys-in-fact or any of them, or their or his substitutes, may
lawfully do or cause to be done by virtue hereof.
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Signature Title Date
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<S> <C> <C>
/s/ Thomas C. Walker Chairman of the Board May 9, 1997
- --------------------- and Chief Development Officer
Thomas C. Walker
/s/ Ed H. Bowman, Jr. Director, President and May 9, 1997
- --------------------- Chief Executive Officer
Ed H. Bowman, Jr. (Principal Executive Officer)
/s/ David Lowenstein Director, Executive Vice President May 9, 1997
- --------------------- and Chief Financial Officer
David Lowenstein (Principal Financial Officer)
/s/ Timothy J. Barker Vice President and Chief Accounting May 9, 1997
- --------------------- Officer (Principal Accounting Officer)
Timothy J. Barker
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Donald F. Moorehead Director May 9, 1997
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Donald F. Moorehead
/s/ G. Michael Bellenghi Director May 9, 1997
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G. Michael Bellenghi
/s/ Jerry F. Leonard, Jr. Director May 9, 1997
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Jerry F. Leonard, Jr.
/s/ Greg Melanson Director May 9, 1997
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Greg Melanson
/s/ Jonathan B. Shaw Director May 9, 1997
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Jonathan B. Shaw
/s/ Michael J. Bradley Director May 9, 1997
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Michael J. Bradley
/s/ Hon. Edward M. Rowell Director May 9, 1997
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Hon. Edward M. Rowell
</TABLE>
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EXHIBIT INDEX
Exhibit Description
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4.1 Amended and Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1 (Registration No. 33-98608))
4.2 By-Laws of the Company (Incorporated by reference to Exhibit 3.2 to
the Company's Registration Statement on Form S-1 (Registration No.
33-98608))
4.3 Form of certificate evidencing ownership of Common Stock of the
Company (incorporated by reference to Exhibit 4.2 to the Company's
Registration Statement on Form S-1 (Registration No. 33-98608))
4.4 Amended and Restated Warrant issued to Ed H. Bowman, Jr. dated
November 16, 1995, as amended and restated as of March 31, 1997
(Incorporated by reference to Exhibit 10.26 to the Registrant's
Current Report on Form 8-K filed on April 9, 1997)
4.5 Amended and Restated Warrant issued to Timothy J. Barker dated
November 16, 1995, as amended and restated as of March 31, 1997
(Incorporated by reference to Exhibit 10.28 to the Registrant's
Current Report on Form 8-K filed on April 9, 1997)
4.6 Amended and Restated Warrant issued to Ed H. Bowman, Jr. dated May
21, 1996, as amended and restated as of March 31, 1997
(Incorporated by reference to Exhibit 10.27 to the Registrant's
Current Report on Form 8-K filed on April 9, 1997)
4.7 Amended and Restated Employment Agreement between F.Y.I.
Incorporated and Ed H. Bowman, Jr. (Incorporated by reference to
Exhibit 10.25 to the Registrant's Current Report on Form 8-K filed
on April 9, 1997)
5 Opinion of Morgan, Lewis & Bockius LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Elko, Fischer, McCabe & Rudman, Ltd.
23.3 Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5)
24 Powers of Attorney (included on signature pages hereof)
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EXHIBIT 5
May 9, 1997
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Re: Issuance of Shares Pursuant to
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to F.Y.I. Incorporated, a Delaware
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Act"), of a Registration Statement on Form S-8
(the "Registration Statement") relating to the registration by the Company of
an aggregate of 265,000 shares (the "Shares") of the Company's Common Stock,
$.01 par value per share, to be issued pursuant to warrants granted to
directors and officers of the Company or a subsidiary.
In so acting, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of (a) the Registration Statement,
(b) the Amended and Restated Certificate of Incorporation of the Company, (c)
the By-Laws of the Company, (d) the warrants and (e) such other documents,
records, certificates and other instruments of the Company as in our judgment
are necessary or appropriate for purposes of this opinion.
Based on the foregoing, we are of the following opinion:
1. The Company is a corporation duly incorporated and validly
existing under the laws of the State of Delaware.
2. The Shares, when issued in accordance with the terms of the
warrants and for consideration not less than par value per Share, will
be duly authorized, validly issued, fully paid and non-assessable.
We are expressing the opinions above as members of the Bar of
the State of New York and express no opinion as to any law other than the
General Corporation Law of the State of Delaware.
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We consent to the use of this opinion as an exhibit to the
Registration Statement. In giving such opinion, we do not thereby admit that
we are acting within the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Commission thereunder.
Very truly yours,
Morgan, Lewis & Bockius LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of our
reports included in or made a part of the Annual Report on Form 10-K of F.Y.I.
Incorporated for the year ended December 31, 1996.
ARTHUR ANDERSEN LLP
Dallas, Texas
May 8, 1997
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of our
report included in or made a part of the Annual Report on Form 10-K of F.Y.I.
Incorporated for the year ended December 31, 1996.
ELKO, FISCHER, MCCABE & RUDMAN, Ltd.
Media, Pennsylvania
May 8, 1997
