<PAGE>
As filed with the Securities and Exchange Commission on May 14, 1998
Registration No. 333-_____
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
METRIS COMPANIES INC.
(Exact name of registrant as specified in its charter)
Delaware 41-1849591
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
600 South Highway 169, Suite 1800
St. Louis Park, Minnesota 55426
(Address of Principal Executive Offices) (Zip Code)
METRIS COMPANIES INC.
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(full title of the plan)
Copy to:
Z. Jill Barclift Elizabeth C. Hinck, Esq.
Metris Companies Inc. Dorsey & Whitney LLP
600 South Highway 169, Suite 1800 Pillsbury Center South
St. Louis Park, Minnesota 55426 220 South Sixth Street
(Name and address of agent for service) Minneapolis, Minnesota 55402-1498
(612) 525-5020 (612) 340-7788
(Telephone number, including area code,
of agent for service)
----------------
Approximate date of commencement of proposed sale to the public: from
time to time after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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<S> <C> <C> <C> <C>
Title of each class Proposed Maximum Proposed
of Securities to be Amount to be Offering Price Maximum Aggregate Amount of
registered registered (1) per Share (2) Offering Price (2) Registration Fee
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Common Stock, $ .01 par value,
to be issued pursuant to the Plan 100,000 $ 54.88 $ 5,488,000 $ 1,619
- -----------------------------------------------------------------------------------------------------------------
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</TABLE>
(1) The number of shares being registered represents the number of shares of
Common Stock that may be issued pursuant to the Metris Companies Inc. Non-
Employee Director Stock Option Plan (the "Plan").
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and based on the average high and low prices for
shares of the Company's Common Stock on NASDAQ National Market System on
May 7, 1998.
As filed with the Securities and Exchange Commission on May 14, 1998
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents that have been filed by Metris Companies
Inc. (the "Company") with the Securities and Exchange Commission are
incorporated by reference in this Registration Statement, as of their
respective dates:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997; and
(b) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, dated October
23, 1996, and any amendment or reports filed for the purpose
of updating such description filed subsequent to the date of
this Prospectus and prior to the termination of the offering
described herein.
All documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to
the date of this Registration Statement 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 into this Registration Statement and
to be a part hereof from the respective dates of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
The description of the Company's capital stock to be offered
pursuant to this Registration Statement has been incorporated by reference
into this Registration Statement as described in Item 3 of this Part II.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware
provides that under certain circumstances a corporation may indemnify any
person who is a party, or is threatened to be made a party, to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation or
is or was serving at its request in such capacity in another corporation or
business association, against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if
he or she acted in good faith and in a manner he or she 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 reasonable cause to
believe his conduct was unlawful.
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<PAGE>
The Certificate of Incorporation and Bylaws of the Company provide
that (a) the Company shall indemnify to the full extent permitted by law any
person made, or threatened to be made, a party to any action, suit or
proceeding (whether civil, criminal, administrative or investigative) by
reason of the fact that he or she is or was a director, officer or employee
of the Company serving at its request as a director, officer, employee,
trustee or agent of another enterprise and (b) the Company shall pay the
expenses, including attorney's fees, incurred by a director or officer in
defending or investigating a threatened or pending action, suit or
proceeding, in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount by the Company. The Certificate of Incorporation
also provides that, to the extent permitted by law, the directors of the
Company shall have no liability to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director.
Officers and Directors of the Company are insured under a standard
officers' and directors liability insurance policy maintained by Fingerhut
Companies, Inc., which owns over 80% of the Common Stock of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- -------- -----------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.a to the Company's
Registration Statement on Form S-1, Registration No. 333-10831).
4.2 Amended and Restated Bylaws of the Company.
4.3 Metris Companies Inc. Non-Employee Director Stock Option Plan, as
amended to date (incorporated by reference to Exhibit 10.9 to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, File No. 001-12351).
5.1 Opinion of Dorsey & Whitney LLP.
23.1 Consent of Dorsey & Whitney LLP (included in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP Independent Public Accountants.
24.1 Power of Attorney.
</TABLE>
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<PAGE>
ITEM 9. UNDERTAKINGS
A. POST-EFFECTIVE AMENDMENTS
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, as amended (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 a prospectus filed with the Commission
pursuant to Rule 424(b) under 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
this 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.
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) of this
section 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, as amended, that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining 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 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. SUBSEQUENT DOCUMENTS INCORPORATED BY REFERENCE
The registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, 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 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.
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<PAGE>
C. CLAIMS FOR INDEMNIFICATION
Insofar as indemnification for liabilities arising under the
Securities Act 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 Securities 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 Securities Act and will be governed by the
final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 St. Louis Park, State of Minnesota, on May 13,
1998.
METRIS COMPANIES INC.
By /s/ Ronald N. Zebeck
---------------------------------
Ronald N. Zebeck
President, Chief Executive
Officer and Director
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on
the dates indicated.
By /s/ Ronald N. Zebeck Dated: May 13, 1998
---------------------------------
Ronald N. Zebeck
resident, Chief Executive Officer and Director
(Principal Executive Officer)
By /s/ Robert W. Oberrender Dated: May 13, 1998
---------------------------------
Robert W. Oberrender
Senior Vice President and
Chief Financial Officer
(Principal Financial Officer)
By /s/ Jean C. Benson Dated: May 13, 1998
---------------------------------
Jean C. Benson
Director of Finance and Corporate Controller
(Principal Accounting Officer)
By *
---------------------------------
Theodore Deikel
Chairman of the Board of Directors
By *
---------------------------------
Dudley C. Mecum
Director
By *
---------------------------------
Michael P. Sherman
Director
By *
---------------------------------
Frank D. Trestman
Director
By *
---------------------------------
Derek V. Smith
Director
By *
---------------------------------
Lee R. Anderson, Sr.
Director
*By /s/ Z. Jill Barclift
---------------------------------
Robert W. Oberrender or Z. Jill Barclift Dated: May 13, 1998
Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.a to the Company's
Registration Statement on Form S-1, Registration No. 333-10831).
4.2 Amended and Restated Bylaws of the Company.
4.3 Metris Companies Inc. Non-Employee Director Stock Option Plan
(incorporated by reference to Exhibit 10.9 to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1997, File
No. 001-12351).
5.1 Opinion of Dorsey & Whitney LLP.
23.1 Consent of Dorsey & Whitney LLP (included in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP Independent Public Accountants.
24.1 Power of Attorney.
</TABLE>
<PAGE>
Exhibit 4.2
4/17/98
AMENDED AND RESTATED BYLAWS
OF
METRIS COMPANIES INC.
ARTICLE I
OFFICES
The corporation may have such offices and places of business, within or
without the State of Delaware, at such locations as the Board of Directors
may from time to time designate, or the business of the corporation may
require.
ARTICLE II
STOCKHOLDERS
Section 1. ANNUAL MEETING. (a) The corporation shall hold regular
annual meetings of the corporation's stockholders for the election of
directors. The time and place of any such meetings shall be determined by the
Board of Directors and communicated to the stockholders according to the
requirements set forth herein. Subject to paragraph (b) of this Section 1,
which paragraph (b) shall be deemed valid on and after June 1, 1998 and
before such date deemed null and void, any other proper business may be
conducted at an annual meeting.
(b) Only such business shall be conducted at an annual meeting of
stockholders as shall have been properly brought before the meeting. For
business to be properly brought before the meeting, it must be: (i)
authorized by the Board of Directors and specified in the notice, or a
supplemental notice, of the meeting, (ii) otherwise brought before the
meeting by or at the direction of the Board of Directors or the chairman of
the meeting or (iii) otherwise properly brought before the meeting by a
stockholder. For business to be properly brought before an annual meeting by
a stockholder, the stockholder must have given written notice thereof to the
Secretary, delivered or mailed to and received at the principal executive
offices of the corporation (x) not less than 50 days nor more than 75 days
prior to the meeting or (y) if less than 60 days' notice of the meeting or
prior public disclosure of the date of the meeting is given or made to
stockholders, not later than the close of business on the tenth day following
the day on which the notice of the meeting was mailed or, if earlier, the day
on which such public disclosure was made. A stockholder's notice to the
Secretary shall set forth as to each item of business the stockholder
proposes to bring before the meeting (1) a brief description of such item and
the reasons for conducting such business at the meeting, (2) the name and
address, as they appear on the corporation's records, of the stockholder
proposing such business, (3) the class and number of shares of stock of the
corporation which
<PAGE>
are beneficially owned by the stockholder (for purposes of the regulations
under Sections 13 and 14 of the Securities Exchange Act of 1934, as amended)
and (4) any material interest of the stockholder in such business. No
business shall be conducted at any annual meeting except in accordance with
the procedures set forth in this paragraph (b). The chairman of the meeting
at which any business is proposed by a stockholder shall, if the facts
warrant, determine and declare to the meeting that such business was not
properly brought before the meeting in accordance with the provisions of this
paragraph (b), and, in such event, the business not properly before the
meeting shall not be transacted.
Section 2. PLACE OF MEETING. All meetings of the stockholders shall
be held at the offices of the corporation or such other place as may be
designated by the Board of Directors.
Section 3. SPECIAL MEETINGS. Special meetings of the stockholders
may be called for any purpose or purposes at any time by the President, a
majority of the entire Board of Directors or by a committee of the Board of
Directors specifically authorized to call such meetings. The business
transacted at a special meeting of stockholders shall be limited to the
purpose or purposes for which the such meeting is called, except as otherwise
determined by the Board of Directors or the chairman of the meeting.
Section 4. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Except as
otherwise provided by law or by the Certificate of Incorporation, any action
required to be taken, or which may be taken, at any meeting of stockholders
may be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed by the
holders of at least 80% of the shares of outstanding stock entitled to vote
thereon, provided that prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to
those stockholders who have not consented in writing.
Section 5. VOTING BY BALLOT. Unless otherwise provided by law,
voting on any question or in any election may be by voice unless the
presiding officer shall order, or any stockholder shall demand, that voting
be by secret ballot.
Section 6. NOTICE OF MEETING. Written or printed notice stating the
place, date, hour and purpose or purposes of any meeting of the stockholders
shall be sent or given to each stockholder entitled to vote at such meeting.
Notice of each meeting of stockholders shall be in such form as is approved
by the Board of Directors and shall state the purpose or purposes for which
the meeting is called, the date and time when and the place where it is to be
held, and shall be delivered personally or mailed not more than sixty (60)
days and not less than ten (10) days before the day of the meeting. Notice
may be waived before, during or after any meeting by any stockholder. The
waiver may be oral, written or by attendance at the
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<PAGE>
meeting; provided, however, that attendance at a meeting will not constitute
a waiver of notice if the stockholder attends the meeting for the purpose of
objecting to the meeting itself or, at the meeting, objects to the
consideration of a particular item prior to the voting thereon.
Section 7. QUORUM. Except as otherwise provided by law or the
Certificate of Incorporation, (a) prior to June 1, 1998 the holders of not
less than a majority of the outstanding shares entitled to vote, represented
in person or by proxy, shall constitute a quorum for the transaction of
business; and (b) on or after June 1, 1998 the holders of not less than
one-third of the outstanding shares entitled to vote, represented in person
or by proxy, shall constitute a quorum for the transaction of business;
provided, however, that in the event of an election contest subject to Rule
14a-11 under the Securities Exchange Act of 1934, the holders of a majority
of the outstanding shares entitled to vote shall constitute a quorum unless
otherwise provided by law or the Certificate of Incorporation. In the
absence of a quorum, the holders of a majority of the shares represented at
the meeting may adjourn the meeting from time to time without further notice
except as provided in Section 11 of this Article.
Section 8. RECORD DATE. For the purpose of determining stockholders
entitled to notice of, or to vote at, any meeting of the stockholders, or any
adjournment thereof, the Board of Directors may fix in advance a date, such
date being not less than 10 days nor more than 60 days immediately preceding
the date on which the particular action requiring such determination of
stockholders is to be taken. For the purpose of determining stockholders
entitled to receive payment of any dividend or other distribution or
allotment of any rights or stockholders entitled to exercise any rights in
respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the Board of Directors may fix a record date, which
date shall not precede the date upon which the resolution fixing such date is
adopted and which record date shall not be more than sixty days preceding the
action to be taken. Notwithstanding the foregoing, the Board of Directors
shall set record dates in such manner as to ensure that the Company shall
make such notices to the market of such record dates as may be required by
applicable law. Only such stockholders as shall be stockholders of record on
the date so fixed shall be entitled to notice of, and to vote at, such
meeting, or to receive payment of such dividend, or to receive such allotment
of rights, or to exercise such rights, as the case may be, notwithstanding
any transfer of any stock on the books of the corporation after any such
record is fixed as aforesaid.
Section 9. VOTING OF SHARES. Each stockholder of record or the
stockholder's legal proxy shall be entitled to one vote for each voting share
standing in the stockholder's name as reflected on the stock transfer books
of the corporation as of the record date. If a quorum is present, the
affirmative vote of the majority of the shares represented at the meeting may
decide any question properly before the
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<PAGE>
meeting, and shall be the act of the stockholders unless the vote of a
greater number of shares is required by law, the Certificate of Incorporation
or these Bylaws.
Section 10. PROXIES. At all meetings of stockholders, a stockholder
may vote by proxy executed in writing by the stockholder or by the
stockholder's duly authorized attorney-in-fact. Such proxy shall be filed
with an officer of the corporation or with the duly authorized transfer agent
of the corporation at or before the time of the meeting. A proxy shall be
valid for the period specified in the proxy or, if no expiration date is
provided in the proxy, for a period not to exceed three years from the date
of its execution. A proxy's authority shall not be revoked by the death or
incapacity of the maker unless, before the vote is cast and the authority
exercised, written notice of such death or incapacity is given to the
corporation.
Section 11. ADJOURNMENT. If any meeting of the stockholders be
adjourned to another time or place, no notice as to such adjourned meeting
need be given other than by announcement at the meeting, at the time of its
adjournment.
ARTICLE III
BOARD OF DIRECTORS
Section 1. BOARD OF DIRECTORS. The business and affairs of the
corporation shall be managed by, or under the direction of, its Board of
Directors. The members of the Board of Directors need not be stockholders.
Directors shall possess all qualifications required of them pursuant to the
Certificate of Incorporation.
Section 2. NUMBER AND TENURE. (a) The number of directors of the
corporation shall be as determined from time to time by resolution of the
Board of Directors, subject to the provisions of the Certificate of
Incorporation. Each director elected by the stockholders, and each director
elected to fill a vacancy or newly created directorship, shall serve until
the next regular stockholder meeting and until his or her successor is
elected and qualified. Upon the occurrence of the Threshold Time (as defined
in Article VII, Section 1 of the Certificate of Incorporation), the directors
of the Corporation, other than those who may be elected pursuant to the terms
of any series of Preferred Stock, shall be classified, with respect to the
time for which they severally hold office, into three classes, designated
Classes I, II and III, which shall be nearly as equal as possible. Class I
shall consist of __ directors, Class II shall consist of __ directors and
Class III shall consist of __ directors. The membership of each class shall
be determined by the Board of Directors. Directors of Class I shall serve for
a term which expires at the first annual meeting of stockholders to be held
after the Threshold Time. Directors of Class II shall serve for a term which
expires at the second annual meeting of stockholders to be held after the
Threshold Time. Directors of Class III shall serve for a term which expires
at the third annual meeting of stockholders to be held after the Threshold
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<PAGE>
Time. At each succeeding annual meeting of stockholders following such
initial classification, the respective successors of each class shall be
elected for three year terms. Notwithstanding the foregoing, a director's
term shall expire on his or her death, resignation, removal or
disqualification.
(b) Only persons who are nominated in accordance with the
procedures set forth in this paragraph (b) shall be eligible for election as
directors of the corporation. Nominations of persons for election to the
Board of Directors may be made at a meeting of stockholders by the Board of
Directors or by any stockholder of the corporation entitled to vote in the
election of directors at the meeting who complies with the notice procedures
set forth in this paragraph (b). Any nomination by a stockholder must be
made by written notice to the Secretary delivered or mailed to and received
at the principal executive offices of the corporation (i) not less than 50
days nor more than 75 days prior to the meeting or (ii) if less than 60 days'
notice of the meeting or prior public disclosure of the date of the meeting
is given or made to stockholders, not later than the close of business on the
tenth day following the day on which the notice of the meeting was mailed, or
if earlier, the day on which such public disclosure was made. A
stockholder's notice to the Secretary shall set forth (x) as to each person
whom the stockholder proposes to nominate for election or re-election as a
director: (1) the name, age, business address and residence address of such
person, (2) the principal occupation or employment of such person, (3) the
class and number of shares of stock of the corporation which are beneficially
owned by such person (for the purposes of the regulations under Sections 13
and 14 of the Securities Exchange Act of 1934, as amended) and (4) any other
information relating to such person that would be required to be disclosed in
solicitations of proxies for the election of such person as a director of the
corporation pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended, and such person's written consent to being named in any
proxy statement as a nominee and to serving as a director if elected; and (y)
as to the stockholder giving notice (1) the name and address, as they appear
on the corporation's records, of such stockholder and (2) the class and
number of shares of stock of the corporation which are beneficially owned by
such stockholder (determined as provided in clause (x)(3) above). At the
request of the Board of Directors any person nominated by the Board of
Directors for election as a director shall furnish to the Secretary that
information required to be set forth in a stockholder's notice of nomination
which pertains to the nominee. The chairman of the meeting at which a
stockholder nomination is presented shall, if the facts warrant, determine
and declare to the meeting that such nomination was not made in accordance
with the procedures prescribed by this paragraph (b), and, in such event, the
defective nomination shall be disregarded.
Section 3. VACANCIES. Any vacancy occurring on the Board of
Directors by reason of death, resignation, removal or disqualification may be
filled by the unanimous vote of the remaining directors, even though less
than a quorum, at any regular or special meeting. Vacancies on the Board
resulting from newly
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<PAGE>
created directorships may be filled only by the unanimous vote of the
directors serving at the time of the increase.
Section 4. RESIGNATIONS. Any director may resign at any time by
giving written notice to the chairman of the Board, if any, or to the
president or secretary, if any, of the corporation. Unless a later date is
specified in the notice as the effective date of resignation, resignation
shall take effect on the date of receipt of the written notice by the
corporation. Unless otherwise specified in such notice, acceptance of the
resignation shall not be necessary to make it effective.
Section 5. REGULAR AND ANNUAL MEETINGS. The Board of Directors may
hold regular meetings on an annual or other periodic basis. Except as may
otherwise be provided in a resolution of the Board of Directors, or in any
notice of such meeting if the Board of Directors has failed to act on the
issue, the annual meeting of the Board shall be held immediately following
the annual meeting of the stockholders, and regularly scheduled meetings may
be held without notice at such time and place as may be provided by
resolution of the Board of Directors. Notwithstanding the foregoing, the
failure of the corporation to hold an annual or other regularly scheduled
meeting shall not affect the status of the directors or officers, or the
status of the corporation to continue as an operating entity, unless the
Board of Directors provides otherwise by resolution.
Section 6. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the president of the corporation, the chairman of
the Board of Directors, if the Board has elected one of its members to act as
its chairman, or by resolution of the Board of Directors.
Section 7. NOTICE OF SPECIAL MEETINGS. The secretary, or in his or
her absence any other officer of the corporation, shall give each director
notice of the time and place of holding of special meetings of the Board of
Directors by mail at least five days before the meeting, or by telephone,
electronic or facsimile transmission or personal service given at least 24
hours before the meeting. A director may waive notice of any meeting before,
during or after the meeting, and the waiver may be written, oral or by
attendance. The attendance of a director at any meeting and participation
therein shall constitute a waiver of notice of such meeting unless a director
attends such meeting for the express purpose of objecting to the transaction
of any business because the meeting is not lawfully called or convened, and
such director does not thereafter participate in the meeting. Neither the
business to be transacted at, nor the purpose of, any special meeting of the
Board of Directors need be specified in the notice or waiver of notice for
such meeting. No notice need be provided of any meeting which is adjourned
and later reconvened other than by announcement at the meeting at which
adjournment is taken.
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<PAGE>
Section 8. PLACE OF MEETINGS; MEETINGS BY TELEPHONE. Meetings of
the Board shall be at the principal office of the corporation or at such
other place as the directors may from time to time determine. A meeting of
the Board may be held by any means of communication through which all person
participating in the meeting may simultaneously hear and converse with each
other during the meeting, including by means of conference telephone or
similar communications equipment. Participation in a meeting by any such
means constitutes presence in person at the meeting.
Section 9. QUORUM. At all meetings of the Board, a majority of the
directors shall constitute a quorum for the transaction of business;
provided, however, that if less than all of the directors are present at said
meeting, a majority of the directors present may adjourn the meeting from
time to time without notice other than an announcement at the meeting at
which the adjournment is taken.
Section 10. ACT OF BOARD. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the
Board of Directors, unless otherwise provided by the Bylaws, by the
Certificate of Incorporation or by law.
Section 11. ABSENT DIRECTORS. A director may give advance written
consent or opposition to a proposal to be acted on at a Board meeting. If a
director is not present at the meeting, consent or opposition to a proposal
does not constitute presence for purposes of determining the existence of a
quorum, but consent or opposition shall be counted as a vote in favor of or
against the proposal and shall be entered in the minutes or other record of
action at the meeting, if the proposal acted on at the meeting is
substantially the same or has substantially the same effect as the proposal
to which the director has consented or objected.
Section 12. ACTION WITHOUT MEETING. Except as otherwise provided by
law or by the Certificate of Incorporation, any action which is required or
may be taken at a meeting of the Board of Directors or any committee of the
Board may be taken without a meeting if a consent in writing (including a
telecopied transmission), setting forth the action so taken, is signed by a
majority of all the directors or members of the committee entitled to vote
with respect to the subject matter thereof, except as to matters that require
stockholder approval, in which case a consent in writing shall be signed by
all of the directors. Such written action shall be effective on the date when
signed by the required number of directors or committee members, or such
other effective date as set forth therein. When written action is taken by
less than all of the directors, all directors shall be notified immediately
of its text and effective date. Failure to provide the notice, however, shall
not invalidate the written action. A director who does not sign or consent to
the written action shall have no liability for the action or actions taken
thereby.
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Section 13. COMMITTEES. The Board of Directors may, by the
affirmative vote of a majority of the number of directors, designate two or
more of their number to constitute an executive committee, which, to the
extent determined by the Board and allowed by law, shall have and exercise
the authority of the Board in the management of the business of the
corporation, subject to the provisions of the Certificate of Incorporation.
Such executive committee shall act only in the interval between meetings of
the Board and shall be subject at all times to the control and direction of
the Board.
The Board of Directors may, by the affirmative vote of a majority of the
number of directors, also appoint one or more natural persons who need not be
Board members to serve on such other committees as the Board may determine.
Such other committees shall have such powers and duties as shall from time to
time be prescribed by the Board. Such other committees shall be subject at
all times to the control and direction of the Board.
A majority of the members of any committee constitutes a quorum for the
transaction of business. All committees shall keep accurate minutes of their
meetings, which minutes shall be made available upon request to members of
that committee and to any director.
Section 14. CHAIRMAN OF THE BOARD. The directors may elect one of
their members to serve as the chairman of the Board of Directors. The
chairman shall be subject to the control of, and may be removed by, the Board
of Directors. He or she shall perform such duties as may from time to time
be assigned by the Board.
Section 15. RELIANCE UPON RECORDS. Every director, and every member
of any committee of the Board of Directors, shall, in the performance of his
or her duties, be fully protected in relying in good faith upon the records
of the corporation and upon such information, opinions, reports or statements
presented to the corporation by any of its officers or employees, or
committees of the Board of Directors, or by any other person as to matters
the director or member reasonably believes are within such other person's
professional or expert competence and who has been selected with reasonable
care by or on behalf of the corporation, including, but not limited to, such
records, information, opinions, reports or statements as to the value and
amount of the assets, liabilities and/or net profits of the corporation, or
any other facts pertinent to the existence and amount of surplus or other
funds from which dividends might properly be declared and paid, or with which
the corporation's capital stock might properly be purchased or redeemed.
Section 16. INTERESTED DIRECTORS. A director who is directly or
indirectly a party to a contract or transaction with the corporation, or is a
director or officer of or has a financial interest in any other corporation,
partnership, association or other organization which is a party to a contract
or transaction with the corporation, may
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be counted in determining whether a quorum is present at any meeting of the
Board of Directors or a committee thereof at which such contract or
transaction is considered or authorized, and such director may participate in
such meeting and vote on such authorization to the extent permitted by
applicable law, including Sections 141(h) and 144 of the General Corporation
Law of the State of Delaware.
Section 17. COMPENSATION. Unless otherwise restricted by the
Certificate of Incorporation, the Board of Directors shall have the authority
to fix the compensation of directors. The directors shall be paid their
reasonable expenses, if any, of attendance at each meeting of the Board of
Directors or a committee thereof and may be paid a fixed sum for attendance
at each such meeting and an annual retainer or salary for services as a
director or committee member. No such payment shall preclude any director
from serving the corporation in any other capacity and receiving compensation
therefor.
Section 18. PRESUMPTION OF ASSENT. For purposes of any liability as
a director, a director of the corporation who is present at a meeting of the
Board of Directors at which action on any corporate matter is taken shall be
presumed to have assented to the action taken unless (a) he or she objects at
the beginning of the meeting to the transaction of business because the
meeting is not lawfully called or convened and does not thereafter
participate in the meeting; or (b) he or she votes against the action at the
meeting.
ARTICLE IV
OFFICERS
Section 1. ELECTION OF OFFICERS. The Board of Directors shall, from
time to time, elect one or more persons to exercise the functions of the
offices of president, secretary and chief financial officer. The Board of
Directors may, but shall not be required to, elect a treasurer, controller,
secretary and one or more vice presidents, as it deems necessary or
advisable. In addition, the Board of Directors may elect such other officers
and agents as it deems necessary or advisable, including assistant
secretaries and assistant treasurers. Such officers shall exercise such
powers and perform such duties as are prescribed by these Bylaws or as may be
otherwise determined from time to time by the Board of Directors. Any number
of offices or functions of those offices may be held or exercised by the same
person.
Section 2. PRESIDENT. The President shall be the chief executive
officer of the corporation. He shall direct, coordinate and control the
corporation's business and activities and its operating expenses and capital
expenditures and shall have general authority to exercise all the powers
necessary for the chief executive officer of the corporation, all in
accordance with basic policies established by and subject to the control of
the Board of Directors. The President shall also be the chief operating
officer of the corporation. The president shall (a) have general active
management
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of the business of the corporation; (b) when present, preside at all meetings
of the Board and of the stockholders, unless such duties shall have been
assigned to a Chairman of the Board of Directors; (c) see that all orders and
resolutions of the Board are carried into effect; (d) sign and deliver, in
the name of the corporation, any deeds, mortgages, bonds, contracts or other
instruments pertaining to the business of the corporation, except in cases in
which the authority to sign and deliver is required by law to be exercised by
another person or is expressly delegated by the Certificate of Incorporation,
these Bylaws or by the Board to some other officer or agent of the
corporation; (e) maintain records of and, whenever necessary, certify all
proceedings of the Board and the stockholders; and (f) perform other duties
prescribed by the Board.
Section 3. CHIEF FINANCIAL OFFICER. The chief financial officer
shall (a) keep accurate financial records for the corporation; (b) deposit
all money, drafts and checks in the name and to the credit of the corporation
in the banks and depositories designated by the Board; (c) endorse for
deposit all notes, checks and drafts received by the corporation as ordered
by the Board, making proper vouchers therefor; (d) disburse corporate funds
and issue checks and drafts in the name of the corporation, as ordered by the
Board; (e) render to the president and the Board, whenever requested, an
account of all transactions by the chief financial officer and of the
financial condition of the corporation; and (f) perform other duties
prescribed by the Board or by the president.
Section 4. SECRETARY. The secretary shall attend all sessions of
the Board of Directors and all meetings of the stockholders, and record all
votes and minutes of all proceedings in a book kept for that purpose, and
shall perform like duties for the standing committees when required. The
secretary shall give or cause to be given notice of all meetings of the
stockholders and of the Board of Directors when notice is required, and shall
perform such other duties as may be prescribed by the Board of Directors or
the chief executive officer. The secretary shall keep in safe custody the
seal, if any, of the corporation, and shall affix the same to any instrument
requiring it.
Section 5. TERMS OF OFFICE. The officers of the corporation shall
hold office for such terms as shall be determined from time to time by the
Board of Directors or until their successors are chosen and qualify in their
stead.
Section 6. COMPENSATION. The compensation of all executive officers
of the corporation shall be determined by the Board of Directors.
Section 7. RESIGNATIONS. An officer may resign at any time by
giving written notice to the corporation. The resignation is effective
without acceptance when the notice is given to the corporation, unless a
later effective date is specified in the notice.
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Section 8. REMOVALS. An officer may be removed at any time, with or
without cause, by a resolution approved by the affirmative vote of a majority
of the directors present. Such removal is without prejudice to any
contractual rights of the officer.
Section 9. VACANCIES. If the office of any officer or agent becomes
vacant by reason of death, resignation, retirement, disqualification, removal
from office or otherwise, the Board of Directors, may, and in the case of a
vacancy in the office of chief executive officer or chief financial officer
shall, choose a successor or successors who shall hold office for the
unexpired term in respect of which such vacancy occurred.
Section 10. CONTRACT RIGHTS. The election or appointment of a person
as an officer or agent of the corporation does not, of itself, create
contract rights.
ARTICLE V
INDEMNIFICATION
Section 1. DEFINITIONS. For purposes of this Article V: (a)
"corporation" shall be deemed to mean the corporation and shall include, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees and agents so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
legal entity shall stand in the same position under the provisions of this
Article V with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate existence
had continued; (b) a "legal entity" is a corporation, partnership, joint
venture, trust or other enterprise; (c) a "proceeding" is any action, suit,
or proceeding, whether civil, criminal, administrative, arbitrative or
investigative, including an action or suit by or in the right of the
corporation to procure a judgment in its favor, and any appeal in such an
action, suit, or proceeding, and any inquiry or investigation that could lead
to such action, suit or proceeding; and (d) a "qualified position" with
respect to any legal entity is a position as a director or an officer of such
legal entity or a position held by a director, officer or employee of such
legal entity which does or might constitute him a fiduciary with respect to
any employee benefit plan for the employees of such legal entity under any
federal or state law regulating employee benefit plans.
Section 2. MANDATORY INDEMNIFICATION. The corporation shall
indemnify each person who was or is a party or is threatened to be made a
party to any
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proceeding by reason of the fact that he is serving in a qualified position
with respect to the corporation or is serving in a similar capacity with
respect to any other legal entity at the request of the corporation, against
all expenses (including attorneys' fees and costs of investigation and
litigation), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with any such proceeding to the
maximum extent permitted under the General Corporation Law of the State of
Delaware (the "Delaware Law", which term shall be deemed to include the
General Corporation Law of the State of Delaware or any successor statute or
section thereof, as now written or hereafter amended). The termination of
any proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not of itself create a presumption
that such person acted in such a manner as to make him ineligible for
indemnification. The right of a person to be indemnified hereunder shall be
a contract right and shall include the right to be paid by the corporation
all expenses incurred in defending any such proceeding in advance of its
final disposition upon compliance with the provisions of Delaware Law then in
effect concerning advancement of expenses.
Section 3. PERMISSIVE INDEMNIFICATION. In addition to the
indemnification provided for in Section 2, the corporation shall have the
power to indemnify or contract in advance to indemnify, to a lesser or the
same extent that indemnification is required under Section 2, any person who
was or is a party or is threatened to be made a party to any proceeding by
reason of the fact that he is serving in any capacity with respect to the
corporation or with respect to any other legal entity at the request of the
corporation.
Section 4. DETERMINATION THAT INDEMNIFICATION IS PROPER. Any
indemnification under this Article V (unless ordered by a court) shall be
made by the corporation only as authorized in the specific case upon a
determination that such indemnification is permitted under Delaware Law, or,
in the case of indemnification under Section 3, is proper because the
requirements specified by the corporation with respect to such
indemnification have been met. Such determination shall be made (a) by the
Board of Directors by a majority vote of a quorum consisting of directors who
neither are nor were parties to the proceeding, (b) if such a quorum is not
obtainable or, even though obtainable, a majority of disinterested directors
so directs, by independent legal counsel in a written opinion or (c) by the
stockholders. In making a determination the directors may rely, as to all
questions of law, on the advice of independent legal counsel.
Section 5. CLAIMS FOR INDEMNIFICATION OR ADVANCES. If a claim for
indemnification or advancement of expenses hereunder is not paid in full by
the corporation within 60 days after a written claim has been received by the
corporation, the claimant may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim, and if successful in
whole or in part, the claimant shall be entitled to be paid the expenses of
prosecuting such
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claim. It shall be a defense to any such action that such indemnification or
advancement of costs of defense are not permitted under Delaware Law, but the
burden of proving such defense shall be on the corporation.
Section 6. MISCELLANEOUS. Every reference in this Article V to
persons who are entitled to indemnification and advancement of expenses shall
include all persons who formerly occupied any of the positions hereinabove
set forth in this Article V, to the extent they would have been entitled to
indemnification and advancement of expenses under the provisions of this
Article V if they still held such positions and their respective heirs,
executors and administrators. Indemnification or advancement of expenses
provided pursuant to the foregoing provisions of this Article V shall not be
exclusive of any other rights of indemnification or advancement of expenses
to which any person may be entitled. Such rights include, but are not limited
to, any and all rights under insurance policies that may be purchased and
maintained by the corporation or others, whether or not the corporation would
have the power to indemnify such person in the particular instance under the
provisions of this Article V, but no person shall be entitled to
indemnification by the corporation to the extent he is indemnified by any
other party, including an insurer.
Section 7. INSURANCE. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer or
employee of the corporation, or is or was serving at the request of the
corporation as a director, officer or employee of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the corporation would have the power or
the obligation to indemnify him against such liability under the provisions
of this Article V.
ARTICLE VI
SHARES
Section 1. CERTIFICATES. The interest of each stockholder of the
corporation shall be evidenced by certificates for shares of capital stock in
such form or forms as the appropriate officers of the corporation may from
time to time prescribe, unless it shall be determined by, or pursuant to, a
resolution adopted by the Board of Directors that the shares representing
such interest be uncertificated. If certificated, each stockholder shall be
entitled to a certificate representing his shares of capital stock, signed by
the president or a vice president, and by the secretary or an assistant
secretary, if one has been elected or appointed, and otherwise by the chief
financial officer; provided, however, that where a certificate is
countersigned by a transfer agent or an assistant transfer agent or by a
transfer clerk acting on behalf of the corporation and registered by a
registrar, the signatures of said officers on such certificates for shares
may be facsimile. If a person signs or has a facsimile signature
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placed upon a certificate while an officer, transfer agent or registrar of
the corporation, the certificate may be issued by the corporation, even if
the person has ceased to have that capacity before the certificate is issued,
with the same effect as if the person had that capacity at the date of its
issue. All certificates for shares shall be consecutively numbered or
otherwise identified, and shall state the name of the corporation, that it is
organized under the laws of the State of Delaware, the name of the person to
whom the shares are issued, the number and class of shares, and the
designation of the series, if any, that the certificate represents. The name
of the person to whom the shares are issued, with the number of shares and
date of issue, shall be entered on the books of the corporation.
Section 2. TRANSFER OF SHARES. The shares of stock of the
corporation shall be transferable upon its books only by the persons named in
the certificates or by their attorneys-in-fact or legal representatives duly
authorized in writing, and upon surrender to the corporation of the old stock
certificates, properly endorsed, to the person in charge of the stock and
transfer books and ledgers, or to such other persons as the Board of
Directors may designate, by whom they shall be canceled. New certificates for
the shares shall thereupon be issued to the person entitled to such new
certificates. A record shall be made of each transfer, and whenever a
transfer shall be made for collateral security, and not absolutely, it shall
be so expressed in the entry of the transfer.
Section 3. LOST CERTIFICATES. Any stockholder claiming that a
certificate for shares has been lost, destroyed or wrongfully taken shall
make an affidavit or affirmation of that fact and, if the Board of Directors
so requires, shall: (a) advertise such fact in such manner as the Board of
Directors may require; (b) give to the corporation and its transfer agent and
registrar, if any, a bond of indemnity in open penalty as to amount or in
such other sum as the Board of Directors may direct, in form satisfactory to
the Board of Directors and to the transfer agent and registrar of the
corporation, if any, and with or without such sureties as the Board of
Directors with the approval of the transfer agent and registrar, if any, may
prescribe; and (c) satisfy such other requirements as may be imposed by the
Board.
If notice by the stockholder of the loss, destruction or wrongful taking
of a certificate is received by the corporation before the corporation has
received notice that the shares represented by such certificate have been
acquired by a bona fide purchaser, and if the foregoing requirements imposed
by the Board are satisfied, then the Board of Directors shall authorize the
issuance of a new certificate for shares of the same class and series and for
the same number of shares as the one alleged to have been lost or destroyed.
Section 4. DIVIDENDS. The Board of Directors may declare and pay
dividends to the extent permitted by statute and the Certificate of
Incorporation.
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ARTICLE VII
MISCELLANEOUS
Section 1. BOOKS OF ACCOUNT. The corporation shall keep such books of
account as are required by statute or the Certificate of Incorporation.
Section 2. CORPORATE SEAL. If so directed by the Board of
Directors, the corporation may use a corporate seal. The failure to use such
seal, however, shall not affect the validity of any documents executed on
behalf of the corporation. The seal need only include the word "seal", but
it may also include, at the discretion of the Board of Directors, such
additional wording as is permitted by law.
Section 3. FISCAL YEAR. The fiscal year of the corporation shall be
as determined by resolution of the Board of Directors.
Section 4. AMENDMENT OF BYLAWS. The power to adopt, amend or repeal
the Bylaws is vested in the Board. The power of the Board is subject,
however, to the power of the stockholders to amend or repeal Bylaws adopted,
amended or repealed by the Board.
Section 5. STOCK OF OTHER CORPORATIONS OR OTHER INTERESTS. Unless
otherwise ordered by the Board of Directors, the chief executive officer, the
secretary, if any, and such other attorneys or agents of the corporation as
may from time to time be authorized by the Board of Directors or the
president, shall have full power and authority on behalf of the corporation
to attend, and to act and vote in person or by proxy at, any meeting of the
holders of securities of any corporation or other entity in which the
corporation may own or hold shares or other securities, and at such meetings
shall possess and may exercise all the rights and powers incident to the
ownership of such shares or other securities which the corporation, as the
owner or holder thereof, might have possessed and exercised if present. The
president, the secretary, if any, or such attorneys or agents, may also
execute and deliver, on behalf of the corporation, powers of attorney,
proxies, consents, waivers and other instruments relating to the shares or
securities owned or held by the corporation.
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Exhibit 5.1
[Letterhead of Dorsey & Whitney LLP]
May 13, 1998
Metris Companies Inc.
600 South Highway 169
Suite 1800
St. Louis Park, MN 55426
Ladies and Gentlemen:
We have acted as counsel to Metris Companies Inc., a Delaware corporation
(the "Company"), in connection with a Registration Statement on Form S-8
relating to the sale by the Company from time to time of up to 100,000 shares of
Common Stock, $.01 par value per share, of the Company (the "Shares"), issuable
pursuant to awards granted under the Company's Non-Employee Director Stock
Option Plan (the "Plan").
We have examined such documents and have reviewed such questions of law as
we have considered necessary and appropriate for the purposes of the opinions
set forth below.
In rendering our opinions set forth below, we have assumed the authenticity
of all documents submitted to us as originals, the genuineness of all signatures
and the conformity to authentic originals of all documents submitted to us as
copies. We have also assumed the legal capacity for all purposes relevant
hereto of all natural persons and, with respect to all parties to agreements or
instruments relevant hereto other than the Company, that such parties had the
requisite power and authority (corporate or otherwise) to execute, deliver and
perform such agreements or instruments, that such agreements or instruments have
been duly authorized by all requisite action (corporate or otherwise), executed
and delivered by such parties and that such agreements or instruments are the
valid, binding and enforceable obligations of such parties. As to questions of
fact material to our opinions, we have relied upon certificates of officers of
the Company and of public officials.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, upon issuance, delivery and payment therefor in accordance
with the terms of the Plan will be validly issued, fully paid and nonassessable.
Our opinions expressed above are limited to the laws of the State of
Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Dorsey & Whitney LLP
ECH
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
Metris Companies Inc.:
We consent to the use of our report incorporated herein by reference
in the Registration Statement.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Minneapolis, Minnesota
May 13, 1998
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Robert W. Oberrender and Z. Jill
Barclift, 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 a Registration Statement on
Form S-8 of the Company's Non-Employee Director Stock Option Plan (the "Plan"),
with respect to shares of Common Stock of Metris Companies Inc. to be issued
under the Plan and any and all amendments thereto, including post-effective
amendments, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission and any
necessary state securities commissions or other agencies, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform 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 their or his substitutes may lawfully do or cause to be done by
virtue hereof.
Signature Date
--------- ----
By /s/ Theodore Deikel Dated: May 13, 1998
--------------------------------------
Theodore Deikel
Chairman of the Board of Directors
By /s/ Dudley C. Mecum Dated: May 13, 1998
--------------------------------------
Dudley C. Mecum
Director
By /s/ Michael P. Sherman Dated: May 13, 1998
--------------------------------------
Michael P. Sherman
Director
By /s/ Frank D. Trestman Dated: May 13, 1998
--------------------------------------
Frank D. Trestman
Director
By /s/ Derek V. Smith Dated: May 13, 1998
--------------------------------------
Derek V. Smith
Director
By /s/ Lee R. Anderson, Sr. Dated: May 13, 1998
--------------------------------------
Lee R. Anderson, Sr.
Director
