<PAGE> 1
As filed with the Securities and Exchange Commission on December 29, 1998
REGISTRATION NO.333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
F.Y.I. INCORPORATED
(Exact name of registrant as specified in its charter)
DELAWARE 75-2560895
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
3232 MCKINNEY AVENUE
SUITE 900
DALLAS, TEXAS 75204
(214) 953-7555
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
F.Y.I. INCORPORATED
1995 STOCK OPTION PLAN
(Full title of the Plan)
ED H. BOWMAN, JR.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
F.Y.I. INCORPORATED
3232 MCKINNEY AVENUE, SUITE 900
(214) 953-7555
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
COPIES TO:
MARGOT T. LEBENBERG, ESQ.
CHRISTOPHER T. JENSEN, ESQ. F.Y.I. INCORPORATED
MORGAN, LEWIS & BOCKIUS LLP 3232 MCKINNEY AVENUE
101 PARK AVENUE SUITE 900
NEW YORK, NEW YORK 10178 DALLAS, TEXAS 75204
(212) 309-6000 (214) 953-7555
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO AMOUNT TO BE OFFERING AGGREGATE OFFERING REGISTRATION
BE REGISTERED REGISTERED (1) PRICE PER SHARE PRICE FEE(3)
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per 3,000,000 $30.5625(2) $91,687,500 $25,489.13
share
</TABLE>
(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 F.Y.I. Incorporated 1995
Stock Option Plan.
(2) Calculated pursuant to Rules 457(c) and (h), based upon the average of the
reported high and low sales prices for the Common Stock as reported on the
Nasdaq National Market for December 23, 1998.
(3) Calculated pursuant to Section 6(b) of the Securities Act of 1933 as
follows: Proposed Maximum Offering Price per share multiplied by .000278.
<PAGE> 3
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 previously 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, 1997, filed with the Commission on March 11, 1998.
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1998, filed with the Commission on May 11, 1998.
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1998, filed with the Commission on August 10, 1998.
(d) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998, filed with the Commission on November 13, 1998.
(e) The Company's Current Report on Form 8-K (dated March 17, 1998), filed
with the Commission on March 20, 1998.
(f) The description of the 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 (Reg. 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 any 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 Amended and Restated Bylaws 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 (the "DGCL"), indemnify its
officers and directors as permitted pursuant thereto.
Section 145 of the DGCL 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 indemnity 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 DGCL 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.
<TABLE>
<CAPTION>
Exhibit Description
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<S> <C>
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 Amended and Restated By-Laws of the Company (incorporated by
reference to Exhibit 3.2 to the Company's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1997, filed with the
Commission on August 8, 1997).
4.3 F.Y.I. Incorporated 1995 Stock Option Plan, as amended
(incorporated by reference to Exhibit 10.1 to the Company's
Quarterly Report on Form 10-Q for the quarter ended March 31,
1998, filed with the Commission on May 11, 1998).
5 Opinion of Morgan, Lewis & Bockius LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Morgan, Lewis & Bockius LLP (included in Exhibit
5).
24 Powers of Attorney (included on signature pages hereof).
</TABLE>
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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) 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 the Registration Statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if 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 the 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.
(c) 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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<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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, State of Texas, on December 29, 1998.
F.Y.I. INCORPORATED
BY: /S/ ED H. BOWMAN, JR.
-----------------------------------------
ED H. BOWMAN, JR.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
POWERS OF ATTORNEY
Each person whose signature appears below hereby authorizes, appoints and
constitutes Ed H. Bowman, Jr. and Margot T. Lebenberg 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 to sign and file any and all amendments to this report 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 substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirement of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Thomas C. Walker Chairman of the Board and December 29, 1998
- --------------------- Chief Development Officer
Thomas C. Walker
/s/ Ed H. Bowman, Jr. Director, President and Chief December 29, 1998
- --------------------- Executive Officer
Ed H. Bowman, Jr. (Principal Executive Officer)
/s/ David Lowenstein Director, Executive Vice President December 29, 1998
- --------------------- and Treasurer
David Lowenstein
/s/ Timothy J. Barker Senior Vice President and December 29, 1998
- --------------------- Chief Financial Officer
Timothy J. Barker (Principal Financial and
Accounting Officer)
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Donald F. Moorehead, Jr. Director December 29, 1998
- ----------------------------
Donald F. Moorehead, Jr.
/s/ G. Michael Bellenghi Director December 29, 1998
- ----------------------------
G. Michael Bellenghi
/s/ Gregory R. Melanson Director December 29, 1998
- ----------------------------
Gregory R. Melanson
/s/ Jonathan B. Shaw Director December 29, 1998
- ----------------------------
Jonathan B. Shaw
/s/ Michael J. Bradley Director December 29, 1998
- ----------------------------
Michael J. Bradley
/s/ Hon. Edward M. Rowell Director December 29, 1998
- ----------------------------
Hon. Edward M. Rowell
/s/ Kyle C. Kerbawy Director December 29, 1998
- ----------------------------
Kyle C. Kerbawy
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ------- -----------
<S> <C>
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 Amended and Restated By-Laws of the Company (incorporated by
reference to Exhibit 3.2 to the Company's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1997, filed with the
Commission on August 8, 1997).
4.3 F.Y.I. Incorporated 1995 Stock Option Plan, as amended
(incorporated by reference to Exhibit 10.1 to the Company's
Quarterly Report on Form 10-Q for the quarter ended March 31,
1998, filed with the Commission on May 11, 1998).
5 Opinion of Morgan, Lewis & Bockius LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Morgan, Lewis & Bockius LLP (included on Exhibit
5).
24 Powers of Attorney (included on signature pages hereof).
</TABLE>
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<PAGE> 1
December 28, 1998
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Re: 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
additional 3,000,000 shares (the "Shares") of the Company's Common Stock, $.01
par value per share, to be issued pursuant to options granted or to be granted
under the Company's 1995 Stock Option Plan, as amended (the "Plan").
In so acting, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of (a) the Amended and Restated
Certificate of Incorporation of the Company, (b) the Amended and Restated
By-Laws of the Company, (c) a good standing certificate dated as of a recent
date from the State of Delaware, (d) the Plan 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 options
and the Plan 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.
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
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 our report dated February
20, 1998, included in F.Y.I. Incorporated's Annual Report on Form 10-K for the
year ended December 31, 1997, and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Dallas, Texas
December 28, 1998
