S-8 1 ds8.txt FORM S-8 As filed with the Securities and Exchange Commission on May 11, 2001 Registration No. 333-________ ================================================================================ UNITED STATES 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 1000 Dallas, Texas 75204 (214) 953-7555 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) Warrants Issued To Employees (Full title of the plan) Ed H. Bowman, Jr. President and Chief Executive Officer F.Y.I. Incorporated 3232 McKinney Avenue, Suite 1000 Dallas, Texas 75204 (214) 953-7555 (Name and address, including zip code, and telephone number, including area code, of agent for service) Copy to: Charles S. Gilbert, Esq. F.Y.I. Incorporated 3232 McKinney Avenue, Suite 1000 Dallas, Texas 75205 (214) 953-7555 ================================================================================ CALCULATION OF REGISTRATION FEE
Maximum Proposed Maximum Title of Each Class of Amount to Offering Aggregate Offering Amount of Securities to Be Registered Be Registered (1) Price Per Share(2) Price Registration Fee(3) ---------------------------------------------------------------------------------------------------------------------------- Common Stock, par value $0.01 496,100 $30.375(2) $15,069,037 $3,978.23(3) per share. 25,000 $ 33.00(2) $ 825,000 $ 217.80(3) ------- --------- TOTALS 521,100 $4,196.03(3) ====================================================================================================================
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the "Securities Act"), the number of shares being registered shall be adjusted to include any additional shares that 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) Calculated pursuant to Rule 457(h) under the Securities Act, for the purpose of calculating the registration fee, based upon the price at which outstanding warrants may be exercised. (3) Calculated pursuant to Section 6(b) of the Securities Act, as follows: proposed maximum offering price per share multiplied by .000264. 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 of Form S-8 to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 of the Securities Act, and the Introductory 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 previously filed by us with the Securities and Exchange Commission (the "SEC") are incorporated herein by reference: (a) Our Annual Report on Form 10-K for the fiscal year ended December 31, 2000, filed with the SEC on March 30, 2001. (b) Our Notice of Annual Meeting and definitive Proxy Statement for our 2001 Annual Meeting of Stockholders to be held on May 10, 2001, filed with the SEC on April 10, 2001. (c) The description of our Common Stock, par value $0.01 per share, contained in our Registration Statement on Form 8-A (File No. 0-27444), filed with the SEC on December 22, 1995, including any amendments or reports filed for the purpose of updating any such description. All reports and other documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (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, will 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, will 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. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Our Amended and Restated Bylaws provide that we will, 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 our officers and directors as permitted pursuant thereto. II-1 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 our Amended and Restated Certificate of Incorporation provides that our directors will not be personally liable to us or our stockholders for monetary damages resulting from breaches of their fiduciary duty as directors except for any breach of the duty of loyalty to us or our stockholders, for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, under Section 174 of the DGCL, which makes directors liable for unlawful dividends or unlawful stock repurchases or redemptions, or 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 F.Y.I. Incorporated (incorporated by reference to Exhibit 3.1 to our Registration Statement on Form S-1 (Registration No. 33- 98608) effective January 12, 1996). 4.2* First Amendment to Amended and Restated By-Laws of F.Y.I. Incorporated (incorporated by reference to Exhibit 3.2 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, filed with the SEC on August 8, 1997). 4.3 Warrant No. W057 issued to Thomas C. Walker, dated January 24, 2001. 4.4 Warrant No. W058 issued to Ed H. Bowman, Jr., dated January 24, 2001. 4.5 Warrant No. W059 issued to Joe A. Rose, dated January 24, 2001. 4.6 Warrant No. W060 issued to Barry L. Edwards, dated January 24, 2001. 4.7 Warrant No. W061 issued to Charles S. Gilbert, dated January 24, 2001. 4.8 Warrant No. W062 issued to Michael S. Rupe, dated January 24, 2001. 4.9 Warrant No. W063 issued to Ronald Zazworsky, dated January 24, 2001. 4.10 Warrant No. W064 issued to Gary Patton, dated January 24, 2001. 4.11 Warrant No. W065 issued to David Byerley, dated January 24, 2001. 4.12 Warrant No. W066 issued to Mary Baker, dated January 24, 2001. II-2 4.13 Warrant No. W067 issued to Hossein Borhani, dated January 24, 2001. 4.14 Warrant No. W068 issued to Charles Haworth, dated January 24, 2001. 4.15 Warrant No. W069 issued to Joan Haworth, dated January 24, 2001. 4.16 Warrant No. W070 issued to Stuart Haworth, dated January 24, 2001. 4.17 Warrant No. W071 issued to Sharon Kelly, dated January 24, 2001. 4.18 Warrant No. W072 issued to Sam Kimelman, dated January 24, 2001. 4.19 Warrant No. W073 issued to Steve Swartz, dated January 24, 2001. 4.20 Warrant No. W074 issued to Janet Thornton, dated January 24, 2001. 4.21 Warrant No. W075 issued to Paul White, dated January 24, 2001. 4.22 Warrant No. W076 issued to Holly Barnett, dated January 24, 2001. 4.23 Warrant No. W077 issued to Dennis Reinhold, dated January 24, 2001. 4.24 Warrant No. W078 issued to E. Leo Cooper, dated January 24, 2001. 4.25 Warrant No. W079 issued to Kerry D. Walbridge, dated March 22, 2001. 5 Opinion of Locke Liddell & Sapp LLP. 23.1 Consent of Arthur Andersen LLP. 23.2 Consent of Locke Liddell & Sapp LLP (included in Exhibit 5). 24 Powers of Attorney (included on signature pages hereof). __________________________ *Previously filed. 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 SEC 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 II-3 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 us 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) We hereby undertake that, for purposes of determining any liability under the Securities Act, each filing of our 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 our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by us 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, we 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 Securities Act and will be governed by the final adjudication of such issue. II-4 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 May 10, 2001. F.Y.I. INCORPORATED By: /s/ Ed H. Bowman, Jr. ----------------------------- Name: Ed H. Bowman, Jr. Title: President and Chief Executive Officer POWERS OF ATTORNEY Each person whose signature appears below hereby authorizes, appoints and constitutes Ed H. Bowman, Jr. and Charles S. Gilbert, 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 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 either 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.
Signature Title Date --------- ----- ---- /s/ Thomas C. Walker Chairman of the Board and Chief May 10, 2001 ------------------------------ Development Officer Thomas C. Walker /s/ Ed H. Bowman, Jr. Director, President and Chief May 10, 2001 ------------------------------ Executive Officer (Principal Executive Ed H. Bowman, Jr. Officer) /s/ David Lowenstein Director and Founder May 10, 2001 ------------------------------ David Lowenstein /s/ Joe A. Rose Director, Executive Vice President and May 10, 2001 ------------------------------ Chief Operating Officer Joe A. Rose /s/ Barry L. Edwards Executive Vice President and Chief May 10, 2001 ------------------------------ Financial Officer (Principal Financial Barry L. Edwards and Accounting Officer) /s/ Michael J. Bradley Director May 10, 2001 ------------------------------ Michael J. Bradley /s/ Donald F. Moorehead, Jr. Director May 10, 2001 ------------------------------ Donald F. Moorehead, Jr. /s/ Hon. Edward M. Rowell Director May 10, 2001 ------------------------------ Hon. Edward M. Rowell /s/ Jonathan B. Shaw Director May 10, 2001 ------------------------------ Jonathan B. Shaw
II-5 EXHIBIT INDEX Exhibit Description ------- ----------- 4.1* Amended and Restated Certificate of Incorporation of F.Y.I. Incorporated (incorporated by reference to Exhibit 3.1 to our Registration Statement on Form S-1 (Registration No. 33- 98608) effective January 12, 1996). 4.2* First Amendment to Amended and Restated By-Laws of F.Y.I. Incorporated (incorporated by reference to Exhibit 3.2 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, filed with the SEC on August 8, 1997). 4.3 Warrant No. W057 issued to Thomas C. Walker, dated January 24, 2001. 4.4 Warrant No. W058 issued to Ed H. Bowman, Jr., dated January 24, 2001. 4.5 Warrant No. W059 issued to Joe A. Rose, dated January 24, 2001. 4.6 Warrant No. W060 issued to Barry L. Edwards, dated January 24, 2001. 4.7 Warrant No. W061 issued to Charles S. Gilbert, dated January 24, 2001. 4.8 Warrant No. W062 issued to Michael S. Rupe, dated January 24, 2001. 4.9 Warrant No. W063 issued to Ronald Zazworsky, dated January 24, 2001. 4.10 Warrant No. W064 issued to Gary Patton, dated January 24, 2001. 4.11 Warrant No. W065 issued to David Byerley, dated January 24, 2001. 4.12 Warrant No. W066 issued to Mary Baker, dated January 24, 2001. 4.13 Warrant No. W067 issued to Hossein Borhani, dated January 24, 2001. 4.14 Warrant No. W068 issued to Charles Haworth, dated January 24, 2001. 4.15 Warrant No. W069 issued to Joan Haworth, dated January 24, 2001. 4.16 Warrant No. W070 issued to Stuart Haworth, dated January 24, 2001. 4.17 Warrant No. W071 issued to Sharon Kelly, dated January 24, 2001. 4.18 Warrant No. W072 issued to Sam Kimelman, dated January 24, 2001. 4.19 Warrant No. W073 issued to Steve Swartz, dated January 24, 2001. 4.20 Warrant No. W074 issued to Janet Thornton, dated January 24, 2001. 4.21 Warrant No. W075 issued to Paul White, dated January 24, 2001. 4.22 Warrant No. W076 issued to Holly Barnett, dated January 24, 2001. 4.23 Warrant No. W077 issued to Dennis Reinhold, dated January 24, 2001. 4.24 Warrant No. W078 issued to E. Leo Cooper, dated January 24, 2001. 4.25 Warrant No. W079 issued to Kerry D. Walbridge, dated March 22, 2001. 5 Opinion of Locke Liddell & Sapp LLP. 23.1 Consent of Arthur Andersen LLP. 23.2 Consent of Locke Liddell & Sapp LLP (included in Exhibit 5). 24 Powers of Attorney (included on signature pages hereof). __________________________ *Previously filed.