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As filed with the Securities and Exchange Commission on October 19, 1995
Registration No. 33-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
____________________
FIRST FINANCIAL MANAGEMENT CORPORATION
(Exact Name of Registrant as specified in its Charter)
____________________
Georgia 58-1107864
(State of Incorporation) (I.R.S. Employer Identification No.)
5660 New Northside Drive, Suite 1400
Atlanta, Georgia 30328
(Address of Principal Executive Offices) (Zip Code)
EMPLOYEE BENEFIT PLANS, INC. 1986 STOCK OPTION PLAN,
EMPLOYEE BENEFIT PLANS, INC. 1990 STOCK OPTION PLAN,
EMPLOYEE BENEFIT PLANS, INC. 1991 LONG-TERM INCENTIVE PERFORMANCE PLAN, AND
EMPLOYEE BENEFIT PLANS, INC. 1993 OUTSIDE DIRECTORS STOCK OPTION PLAN
(Full Title of the Plans)
Randolph L.M. Hutto with copies to:
Senior Executive Vice George L. Cohen
President and General Counsel Sutherland, Asbill & Brennan
First Financial Management Corporation 999 Peachtree Street, N. E.
5660 New Northside Drive, Suite 1400 Atlanta, Georgia 30309-3996
Atlanta, Georgia 30328 (404) 853-8000
(Name and Address of Agent for Service)
(770) 857-0001
(Telephone Number, including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered registered per share(1) price(1) registration fee
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Common Stock, Prices ranging from
$.10 par value 7,820 shares(2) $12.23 to $201.27 $ 877,799 $ 303
Common Stock, Prices ranging from
$.10 par value 15,817 shares(3) $44.31 to $197.47 $1,482,391 $ 512
Common Stock, Prices ranging from
$.10 par value 22,130 shares(4) $41.78 to $221.52 $1,827,605 $ 631
Common Stock,
$.10 par value 10,868 shares(5) $37.98 to $73.42 $ 552,826 $ 191
Total Registration Fee: $1,637
(1) The price is estimated in accordance with Rule 457(h) under the Securities
Act of 1933, solely for the purpose of calculating the registration fee, and
represents the prices per share at which outstanding options may be exercised
multiplied by the number of shares that may be acquired (known to be $877,799
for the Employee Benefit Plans, Inc. ("EBP") 1986 Stock Option Plan,
$1,482,391 for the EBP 1990 Stock Option Plan, $1,827,605 for the EBP 1991
Long-Term Incentive Performance Plan and $552,826 for the EBP 1993 Outside
Directors Stock Option Plan). No additional options will be granted under
these plans.
(2) This represents the maximum number of shares of the Registrant's Common
Stock, $.10 par value per share, that could be acquired upon exercise of all
outstanding options under the EBP 1986 Stock Option Plan.
(3) This represents the maximum number of shares of the Registrant's Common
Stock, $.10 par value per share, that could be acquired upon exercise of all
outstanding options under the EBP 1990 Stock Option Plan.
(4) This represents the maximum number of shares of the Registrant's Common
Stock, $.10 par value per share, that could be acquired upon exercise of all
outstanding options under the EBP 1991 Long-Term Incentive Performance Plan.
(5) This represents the maximum number of shares of the Registrant's Common
Stock, $.10 par value per share, that could be acquired upon exercise of all
outstanding options under the EBP 1993 Outside Directors Stock Option Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10 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)
prospectuses is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended, and the Note to Part I
of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by First Financial Management Corporation
("FFMC") with the SEC (File No. 1-10442) pursuant to the Exchange Act are
incorporated herein by reference: (1) FFMC's Annual Report on Form 10-K for
the year ended December 31, 1994; (2) FFMC's Quarterly Reports on Form 10-Q for
the quarters ended March 31 and June 30, 1995; (3) FFMC's Current Reports on
Form 8-K dated November 4, 1994 (reporting the proposed acquisition of Western
Union Financial Services, Inc. and related assets ("Western Union")), November
15, 1994 (confirming consummation of the acquisition of Western Union and
reflecting various adjustments in the Stock Purchase Agreement with respect to
the acquisition of Western Union), March 28, 1995 (providing updated pro forma
financial information regarding FFMC's acquisition of Western Union), June 9,
1995 (filing certain additional material contracts), June 12, 1995 (reporting
FFMC's agreement to merge with a subsidiary of First Data Corporation ("First
Data")), July 25, 1995 (providing historical financial data for First Data and
CESI Holdings, Inc.), and September 11, 1995 (providing updated pro forma
financial information with respect to the proposed merger of FFMC with a
subsidiary of First Data); and (4) the description of FFMC's Common Stock
contained in its Registration Statement on Form 8-A, filed on January 16, 1990,
as updated by Item 2, Part II to FFMC's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1990 and information contained in Note I to the
financial statements included in FFMC's Annual Report on Form 10-K for the year
ended December 31, 1993.
All documents filed by FFMC pursuant to Sections 13(a) and (c), 14 or
15(d) of the Exchange Act after the date hereof and 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 and to be a part of this Registration Statement
from the date of the filing of such document. Any statement contained in a
document 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.
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Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The legality of the shares of the Registrant's $.10 par value common
stock ("Common Stock") has been passed upon for the Registrant by Sutherland,
Asbill & Brennan, Atlanta, Georgia. George L. Cohen, a partner in Sutherland,
Asbill & Brennan, is a director of the Registrant. Attorneys at Sutherland,
Asbill & Brennan participating in matters relating to the offering beneficially
own 18,794 shares of Common Stock.
Item 6. Indemnification of Directors and Officers
Georgia Business Corporation Code
Section 14-2-851 of the Georgia Business Corporation Code (the "GBCC")
authorizes a Georgia corporation to indemnify a director against loss or
expense if it is determined that the director acted in a manner he believed in
good faith to be in or not opposed to the best interests of the corporation
and, in the case of any criminal proceeding, had no reasonable cause to believe
his conduct was unlawful, except that in proceedings to obtain a judgment in
favor of the corporation, indemnification would be limited to reasonable
expenses incurred in connection with the proceeding, and, in the case of
adjudicated liability, only if the director did not derive an improper personal
benefit.
This indemnification under the GBCC may be made by a Georgia
corporation only upon (1) a determination by the majority vote of a quorum of
non-party directors or if such a quorum cannot be obtained, by majority vote of
a committee consisting of two or more non-party directors, by special legal
counsel, or by the affirmative vote of stockholders excluding shares owned or
the voting of which is controlled by directors who are parties to the
proceeding, that indemnification is proper because the statutory standard of
conduct has been met and (2) authorization by majority vote of a quorum of
non-party directors or a special committee consisting of two or more non-party
directors, or if such a quorum or committee cannot be obtained, by majority
vote of the full board of directors, or by the stockholders as described above.
Section 14-2-852 of the GBCC also provides for the mandatory
indemnification of a director to the extent the director has been successful
(whether or not on the merits) in the defense of any proceeding to which he was
a party, unless provided otherwise by the articles of incorporation. In
addition, Section 14-2-854 of the GBCC authorizes indemnification of a director
by court order if the court determines that the director is entitled to
mandatory indemnification or is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, whether or not the
director met the statutory standard of conduct, or was adjudged liable to the
corporation or improperly derived a personal benefit, but in that event
court-ordered indemnification is limited to reasonable expenses incurred in
connection with the proceeding. Furthermore, Section 14-2-856 of the GBCC
permits broader indemnification, including indemnification against liability to
the corporation, if authorized by the articles of incorporation or by a bylaw,
resolution or contract authorized by majority vote of the stockholders entitled
to vote thereon; however, such indemnification may not be provided to a
director against liability for appropriation of a business opportunity of the
corporation in violation of the director's duties, acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, authorization of any dividend, redemption or distribution of assets in
violation of the GBCC, or any transaction from which the director derived an
improper personal benefit.
Section 14-2-857 of the GBCC permits a Georgia corporation to indemnify
an officer, employee or agent who is not a director to the extent not
inconsistent with public policy. An officer who is not a director is also
entitled to the mandatory indemnification and court-ordered indemnification
available to a director.
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The GBCC provides that a Georgia corporation has the power to purchase
and maintain insurance on behalf of any director, officer, employee or agent of
the corporation, or one serving as such for another entity or enterprise at the
request of the corporation against liability whether or not the corporation
would have the power to indemnify him against such liability under the GBCC.
Bylaws
Article Seven of the Registrant's Bylaws implements the power granted
by the 1989 revision of the GBCC regarding indemnification of directors and
officers. Under Article Seven, the Registrant is required to indemnify each
person who is or was a director or officer of the Registrant (including the
heirs, executors, administrators or estate of such person) or is or was serving
at the request of the Registrant as a director, officer, partner, trustee or
employee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise who is made a party to a proceeding because he
is or was a director or officer of the Registrant or was serving any such other
entity at the Registrant's request against liability incurred in the proceeding
if he acted in a manner he believed in good faith to be in or not opposed to
the best interests of the Registrant and, in the case of any criminal
proceeding, he had no reasonable cause to believe his conduct was unlawful.
Indemnification required by Article Seven also covers reasonable expenses of
any such proceeding, including payment or reimbursement of such expenses in
advance of final disposition of the proceeding, if the person affirms in
writing his good faith belief that he is entitled to such indemnification and
agrees to repay any advances if it is ultimately determined that he is not
entitled to such indemnification.
Unless ordered by a court based on a determination that the person is
entitled to such indemnification because he was successful on the merits or
otherwise in defending against a claim or a determination that he is fairly and
reasonably entitled to indemnification in view of all the relevant
circumstances, indemnification is required under Article Seven only if there is
a determination pursuant to Section 14-2-855 of the GBCC that the person to be
indemnified has met the standard of conduct required for indemnification and
the determination is made by: (1) a majority vote of a quorum of directors not
parties to the proceeding or, in the absence of such quorum, by a majority vote
of a committee of two or more directors not parties to the proceeding; (2)
special legal counsel; or (3) the stockholders (excluding the votes of shares
owned by or voted under the control of directors who are parties to the
proceeding).
As expressly authorized by Section 14-2-856 of the GBCC, the Board of
Directors approved and submitted to the Registrant's stockholders, who also
approved at their May 2, 1990 annual meeting, the addition of a new Section 7.2
of the Bylaws. Section 7.2 grants to directors and officers of the Registrant
and its subsidiaries additional rights to indemnification with respect to
proceedings brought by the Registrant or stockholders' derivative actions
brought on its behalf, except where the person is adjudged liable to the
Registrant or is subjected to injunctive relief in its favor for any of the
following: (1) appropriation of any business opportunity of the Registrant;
(2) intentional misconduct or knowing violations of law; (3) unlawful
distributions; or (4) any transaction from which he received an improper
personal benefit.
Section 7.2 also requires advances or reimbursements of expenses of the
director or officer in connection with any such proceeding if he affirms his
good faith belief that his conduct does not fall within the enumerated
exceptions to such indemnification and he agrees to repay any expense advances
or reimbursements if it is ultimately determined that he is not entitled to
indemnification under Section 7.2. Any indemnification under Section 7.2
(other than advances or reimbursements of expenses) shall be made only if there
has been a determination that the director or officer is entitled to such
indemnification under Section 7.2 of the Bylaws and Section 14-2-856 of the
GBCC and such determination is made by: (1) a majority vote of a quorum of
directors not parties to the proceeding or, in the absence of such quorum, a
majority vote of a committee of two or more directors not parties to the
proceeding; (2) special legal counsel; or (3) the stockholders (excluding the
votes owned by or voted under the control of directors who are parties to the
proceeding).
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Article VIII of the Registrant's Restated Articles of Incorporation,
adopted by its stockholders in 1987, exculpates directors of the Registrant as
to personal liabilities to the Registrant or its stockholders for monetary
damages for breaches of the director's duties, with the same enumerated
exceptions as applicable to indemnification under the newly adopted Section
7.2. Accordingly, Section 7.2 as to the Registrant's directors coordinates the
indemnification rights with the liability exculpation exceptions under the
Registrant's Restated Articles of Incorporation. Indemnification authorized by
Section 7.2, however, also extends to liabilities incurred by the Registrant's
officers and by persons serving, at the Registrant's request, in various
capacities with other entities, such as the Registrant's subsidiaries, subject
to the exceptions and conditions set forth in Section 7.2.
Indemnification Agreements
The Registrant has entered into indemnification agreements with its
directors and executive officers providing for indemnification to the fullest
extent permitted by applicable law, the Registrant's bylaws and resolutions of
the board of directors and shareholders of the Registrant as in effect on the
date of execution of each such indemnification agreement and to such greater
extent as applicable law may thereafter from time to time permit. The terms of
these indemnification agreements are consistent with the terms of Article 7 of
the Registrant's Bylaws.
Insurance Policies
The Registrant currently maintains an insurance policy providing
reimbursement of indemnification payments to officers and directors of the
Registrant and its subsidiaries and reimbursement of certain liabilities
incurred by directors and officers of the Registrant and its subsidiaries in
their capacities as such, to the extent that they are not indemnified by the
Registrant.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4.1 Employee Benefit Plans, Inc. 1986 Stock Option Plan (and form of option
agreement).
4.2 Employee Benefit Plans, Inc. 1990 Stock Option Plan (and form of option
agreement).
4.3 Employee Benefit Plans, Inc. 1991 Long-Term Incentive Performance Plan
(and form of option agreement).
4.4 Employee Benefit Plans, Inc. 1993 Outside Directors Stock Option Plan
(and form of option agreement).
4.5 See Articles V, VI and VIII of the Registrant's Restated Articles of
Incorporation (filed May 13, 1994 as an exhibit to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1994 and
incorporated herein by reference) and Articles 1, 2, 5 and 9 of the
Registrant's Bylaws, as amended through March 15, 1995 (filed as an
exhibit to Registrant's Form 10-K for the fiscal year ended December
31, 1994 and incorporated herein by reference).
5 Opinion of Sutherland, Asbill & Brennan.
23.1 Consent of Sutherland, Asbill & Brennan is contained in its legal
opinion filed as Exhibit 5.
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23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Ernst & Young LLP.
23.4 Consent of Ernst & Young LLP.
23.5 Letter of Ernst & Young LLP.
23.6 Consent of Price Waterhouse LLP.
24 Power of Attorney authorizing Patrick H. Thomas and M. Tarlton Pittard
to sign on behalf of the other directors is contained on Page 9 of this
Registration Statement.
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 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) (Section 230.424(b) of this chapter) 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.
(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 (a)(1)(i) and (a)(1)(ii) 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 with or furnished to the
Commission 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.
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(b) 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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to 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
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 of 1933 may be permitted to directors, officers and 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.
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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 Atlanta, State of Georgia on October 19, 1995.
FIRST FINANCIAL MANAGEMENT
CORPORATION
By: /s/ Patrick H. Thomas
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Patrick H. Thomas
Chairman of the Board, President
and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Patrick H. Thomas and M. Tarlton
Pittard, and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any or all 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 full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, 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 their substitutes, 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 by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Patrick H. Thomas Chairman of the Board, October 19, 1995
- --------------------------------------- President, Chief Executive
Patrick H. Thomas Officer and Director
/s/ M. Tarlton Pittard Vice Chairman, Chief Financial October 19, 1995
- --------------------------------------- Officer, Treasurer and Director
M. Tarlton Pittard
/s/ Richard Macchia Executive Vice President, Finance October 19, 1995
- --------------------------------------- and Principal Accounting Officer
Richard Macchia
/s/ George L. Cohen Director October 19, 1995
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George L. Cohen
(Signatures continued on next page)
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/s/ Jack R. Kelly, Jr. Director October 19, 1995
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Jack R. Kelly, Jr.
/s/ Henry A. Leslie Director October 19, 1995
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Henry A. Leslie
/s/ Charles B. Presley Director October 19, 1995
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Charles B. Presley
/s/ Virgil R. Williams Director October 19, 1995
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Virgil R. Williams