<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.
LONG-TERM INCENTIVE AND 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>
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
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 Registration Fee
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $ .01 par value,
to be issued pursuant to the Plan 2,140,000 $ 54.88 $ 117,443,200 $ 34,646
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
</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. Long-Term Incentive and 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>
- --------------------------------------------------------------------------------
PROSPECTUS
METRIS COMPANIES INC.
----------
914,607
Shares of Common Stock
($.01 Par Value)
----------
THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING
SECURITIES THAT HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933.
----------
This prospectus relates to 914,607 shares of Common Stock, acquired
or to be acquired in the future, by the Selling Stockholders listed herein
pursuant to the Metris Companies Inc. Long-Term Incentive and Stock Option
Plan (the "Plan"). All or a portion of the Common Stock offered hereby may be
offered for sale from time to time on the Nasdaq National Market System or
otherwise at prices and terms then obtainable from the sale of the Common
Stock offered hereby.
No person is authorized to give any information or to make any
representation not contained in this Prospectus in connection with the offer
described herein, and any information or representation not contained herein
must not be relied upon as having been authorized by the Company. This
Prospectus does not constitute an offer to sell these securities in any state
to any person to whom it is unlawful to make such offer in such state.
Neither the delivery of this Prospectus nor any sale made hereunder shall,
under any circumstances, create an implication that information herein is
correct as of any time subsequent to its date.
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------
The date of this Prospectus is May 13, 1998.
- --------------------------------------------------------------------------------
<PAGE>
<TABLE>
TABLE OF CONTENTS
<S> <C>
AVAILABLE INFORMATION ...................................................... 1
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE ............................ 1
THE COMPANY ................................................................ 1
USE OF PROCEEDS ............................................................ 2
SELLING STOCKHOLDERS ....................................................... 2
PLAN OF DISTRIBUTION ....................................................... 2
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES ............................. 3
APPENDIX
</TABLE>
<PAGE>
AVAILABLE INFORMATION
Metris Companies Inc. (the "Company") is subject to the
informational requirements of the Securities Exchange Act of 1934, as
amended, and in accordance therewith, files reports, proxy statements and
other information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements and other information can be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street N.W., Room 1024, Washington, D.C. 20549, as
well as at the following regional offices: 500 West Madison Street, Suite
1400, Chicago, Illinois 60661; and 7 World Trade Center, Suite 1300, New
York, New York 10048. Copies of such material may be obtained at prescribed
rates from the Public Reference Section of the Commission at 450 Fifth Street
N.W., Room 1024, Washington, D.C. 20549. Reports, proxy statements and other
information may be accessed electronically by means of the Commission's home
page on the internet (http://www.sec.gov). Such information may also be
inspected at the Nasdaq National Market System, the national securities
exchange on which the Company's Common Stock is listed.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company with
the Commission are incorporated by reference in this Prospectus, 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 Prospectus and to be a part
hereof from the respective dates of filing of such documents.
The Company will provide without charge to each person to whom a
copy of this Prospectus has been delivered, on the written or oral request of
such person, a copy of any or all of the following:
(a) The documents referred to above, excluding exhibits thereto,
which have been or may be incorporated by reference in this
Prospectus;
(b) The Company's annual report to stockholders for the last fiscal
year; or
(c) Any report, proxy statement or other communication distributed to
stockholders.
Requests for such copies should be directed to Robert W. Oberrender,
Senior Vice President and Chief Financial Officer, Metris Companies Inc., 600
South Highway 169, Suite 1800, St. Louis Park, Minnesota 55426, telephone
number (612) 525-5020.
THE COMPANY
The complete mailing address of the principal executive offices of
the Company is 600 South Highway 169, Suite 1800, St. Louis Park, Minnesota
55426, telephone number (612) 525-5020.
-1-
<PAGE>
USE OF PROCEEDS
The Company will receive none of the proceeds from the sale of the
shares of Common Stock offered hereby.
SELLING STOCKHOLDERS
The Appendix to this Prospectus contains a table which sets forth
the name, position with the Company, and certain information with respect to
the ownership of the Company's Common Stock, for each of the Selling
Stockholders.
PLAN OF DISTRIBUTION
The Selling Stockholders have not advised the Company of any
specific plans for the distribution of the shares offered hereby, but it is
anticipated that the shares will be sold from time to time. Such sales may be
made in one or more exchanges, in the over-the-counter market or otherwise at
prices and at terms then prevailing or at prices related to the then-current
market price, or in negotiated transactions. The shares may be sold by one or
more of the following: (a) a block trade in which the broker or dealer so
engaged will attempt to sell the shares as agent but may position and resell
a portion of the block as principal to facilitate the transaction; (b)
purchases by a broker or dealer as principal and resale by such broker or
dealer for its account pursuant to this Prospectus; (c) an exchange
distribution in accordance with the rules of such exchange; and (d) ordinary
brokerage transactions and transactions in which the broker solicits
purchasers. In effecting sales, brokers or dealers engaged by the Selling
Stockholders may arrange for other brokers or dealers to participate. Brokers
or dealers will receive commissions or discounts from Selling Stockholders in
amounts to be negotiated immediately prior to the sale. Any brokers or
dealers acting in connection with the sale of the shares hereunder may be
deemed to be "underwriters" within the meaning of Section 2(11) of the
Securities Act of 1933, as amended (the "Securities Act"), and any
commissions received by them and any profit realized by them on the resale of
shares as principals may be deemed underwriting compensation under the
Securities Act.
Any shares offered hereby which qualify for sale pursuant to Rule
144 of the Securities Act may be sold under such rule rather than pursuant to
this Prospectus.
-2-
<PAGE>
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Metris Companies Inc. is incorporated under the laws of the State of
Delaware. 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.
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.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Company pursuant to the foregoing provisions, the Company has been
informed that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
-3-
<PAGE>
APPENDIX
SELLING STOCKHOLDERS
The following table sets forth certain information with respect to
the Selling Stockholders and the shares of Common Stock being offered hereby
as of the date hereof.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
Name and Position Beneficially Owned Maximum Offered Beneficially Owned
with the Company Before Offering (1) Hereby (2) After Offering (3)
- ------------------- ------------------- ---------------- -------------------
<S> <C> <C> <C>
Ronald N. Zebeck 649,607 639,607 10,000
President, Chief
Executive Officer
and Director
Theodore Deikel 275,000 275,000 0
Chairman of the Board
of Directors
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
</TABLE>
(1) The shares listed in this column include those that have been or may be
acquired within 60 days of the date hereof pursuant to the Plan.
(2) The shares listed in this column have been or may be acquired pursuant to
the exercise of options under the Plan, whether or not such options were
exercisable within 60 days of the date hereof. The statement "Maximum Offered
Hereby" does not constitute a commitment to sell the number of shares listed.
The number of shares offered will be determined from time to time by each
Selling Stockholder at his sole discretion.
(3) Assumes the Maximum Offered Hereby is sold.
<PAGE>
- --------------------------------------------------------------------------------
METRIS COMPANIES INC.
----------
914,607
Shares of Common Stock
($.01 Par Value)
----------
PROSPECTUS
----------
No dealer, salesperson or other person is authorized to give any
information or to make representations not contained in this Prospectus in
connection with the offer made by this Prospectus and, if given or made, such
information or representations must not be relied upon as having been
authorized by the Company, the Selling Stockholder or any other person. This
Prospectus does not constitute an offer to sell or a solicitation of an offer
to buy any of the securities offered hereby by anyone in any jurisdiction in
which such offer or solicitation is not authorized or in which the person
making such offer or solicitation is not qualified to do so or to anyone to
whom it is unlawful to make such an offer or solicitation. Neither the
delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that the affairs of the Company since
the date hereof or the information herein is correct as of any time
subsequent to the date of this Prospectus.
----------
TABLE OF CONTENTS
<TABLE>
<S> <C>
AVAILABLE INFORMATION ...................................................... 1
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE ............................ 1
THE COMPANY ................................................................ 2
USE OF PROCEEDS ............................................................ 2
SELLING STOCKHOLDERS ....................................................... 2
PLAN OF DISTRIBUTION ....................................................... 2
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES ............................. 3
APPENDIX
</TABLE>
The date of this Prospectus is May 13, 1998.
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
REGISTRATION OF ADDITIONAL SECURITIES
Pursuant to Section E of the General Instructions to Form S-8, this
Registration Statement incorporates by reference the Registration Statement
on Form S-8 relating to the Plan filed with the Securities and Exchange
Commission on December 22, 1997 (File No. 333-42961).
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. Long-Term Incentive and Stock Option Plan, as
amended May 12, 1998.
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>
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
President, 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 Dated: May 13, 1998
-----------------------------------------------
Robert W. Oberrender or Z. Jill Barclift
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. Long-Term Incentive and Stock Option Plan, as
amended May 12, 1998.
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
-2-
<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
-3-
<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
-4-
<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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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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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 4.3
METRIS COMPANIES INC.
LONG-TERM INCENTIVE AND STOCK OPTION PLAN
As Amended May 12, 1998.
1. Purpose of Plan.
This Plan shall be known as the "METRIS COMPANIES INC. LONG-TERM
INCENTIVE AND STOCK OPTION PLAN" and is hereinafter referred to as the
"Plan." The purpose of the Plan is to aid in maintaining and developing
personnel capable of ensuring the future success of Metris Companies Inc., a
Delaware corporation (the "Company"), to offer such personnel additional
incentives to put forth maximum efforts for the success of the business, and
to afford them an opportunity to acquire a proprietary interest in the
Company through stock options and other long-term incentive awards as
provided herein. Options granted under this Plan may be either incentive
stock options ("Incentive Stock Options") within the meaning of Section 422
of the Internal Revenue Code of 1986, as amended (the "Code"), or stock
options which do not qualify as Incentive Stock Options ("Nonqualified Stock
Options"). Awards granted under this Plan may be stock appreciation rights,
restricted stock or performance awards as hereinafter described.
2. Stock Subject to Plan.
Subject to the provisions of Section 15 hereof, the stock to be subject
to options or other awards under the Plan shall be the Company's common
stock, $.01 par value (the "Common Stock"). Subject to adjustment as provided
in Section 15 hereof, the maximum number of shares on which options may be
exercised or other awards issued under this Plan shall be 4,000,000 shares.
If an option or award under the Plan expires, or for any reason is terminated
or unexercised with respect to any shares, such shares shall again be
available for options or awards thereafter granted during the term of the
Plan.
3. Administration of Plan.
(a) The Plan shall be administered by the Compensation Committee of the
Board of Directors (the "Committee") which shall be a committee comprised of
not less than two directors appointed from time to time by the Board of
Directors. Each member of the Committee shall be a "Non-Employee Director"
within the meaning of Rule 16b-3 promulgated by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended, or any
successor rule or regulation ("Rule 16b-3") and an "outside director" within
the meaning of Section 162(m) of the Code.
<PAGE>
(b) The Committee shall have plenary authority in its discretion, but
subject to the express provisions of the Plan: (i) to determine the purchase
price of the Common Stock covered by each option or award, (ii) to determine
the individuals to whom and the time or times at which such options and
awards shall be granted and the number of shares to be subject to each, (iii)
to determine the form of payment to be made upon the exercise of an SAR or in
connection with performance awards, either cash, Common Stock or a
combination thereof, (iv) to determine the terms of exercise of each option
and award, (v) to accelerate the time at which all or any part of an option
or award may be exercised, (vi) to amend or modify the terms of any option or
award with the consent of the optionee, (vii) to interpret the Plan, (viii)
to prescribe, amend and rescind rules and regulations relating to the Plan,
(ix) to determine the terms and provisions of each option and award agreement
under the Plan (which agreements need not be identical), including the
designation of those options intended to be Incentive Stock Options, and (x)
to make all other determinations necessary or advisable for the
administration of the Plan, subject to the exclusive authority of the Board
of Directors under Section 16 hereof to amend or terminate the Plan. The
Committee's determinations on the foregoing matters, unless otherwise
disapproved by the Board of Directors of the Company, shall be final and
conclusive.
4. Eligibility.
Incentive Stock Options may only be granted under this Plan to any full
or part-time employee (which term as used herein includes, but is not limited
to, officers and directors who are also employees) of the Company and of its
present and future subsidiary corporations within the meaning of Section
424(f) of the Code (herein called "subsidiaries"). Full or part-time
employees, consultants or independent contractors to the Company or one of
its subsidiaries and full and part-time employees of any subsidiary of
Fingerhut Companies, Inc. shall be eligible to receive Nonqualified Stock
Options and awards. In determining the persons to whom options and awards
shall be granted and the number of shares subject to each, the Committee may
take into account the nature of services rendered by the respective employees
or consultants, their present and potential contributions to the success of
the Company and such other factors as the Committee in its discretion shall
deem relevant. A person who has been granted an option or award under this
Plan may be granted additional options or awards under the Plan if the
Committee shall so determine; provided, however, that for Incentive Stock
Options granted after December 31, 1986, to the extent the aggregate fair
market value (determined at the time the Incentive Stock Option is granted)
of the Common Stock with respect to which all Incentive Stock Options are
exercisable for the first time by an employee during any calendar year (under
all plans described in subsection (d) of Section 422 of the Code of his
employer corporation and its parent and subsidiary corporations) exceeds
$100,000, such options shall be treated as Nonqualified Stock Options.
Nothing in the Plan or in any agreement thereunder shall confer on any
employee any right to continue in the employ of the Company or any of its
subsidiaries or affect, in any way, the right of the Company or any of its
subsidiaries or Fingerhut Companies, Inc. or any of its subsidiaries to
terminate his or her employment at any time.
<PAGE>
5. Price.
The option price for all Incentive Stock Options granted under the Plan
shall be determined by the Committee but shall not be less than 100% of the
fair market value per share of Common Stock at the date of grant of such
option. The option price for Nonqualified Stock Options granted under the
Plan and, if applicable, the price for all awards shall also be determined by
the Committee. For purposes of the preceding sentence and for all other
valuation purposes under the Plan, the fair market value of the Common Stock
shall be as reasonably determined by the Committee. If on the date of grant
of any option or award hereunder the Common Stock is not traded on an
established securities market, the Committee shall make a good faith attempt
to satisfy the requirements of this Section 5 and in connection therewith
shall take such action as it deems necessary or advisable.
6. Term.
Each option and award and all rights and obligations thereunder shall
expire on the date determined by the Committee and specified in the option or
award agreement. The Committee shall be under no duty to provide terms of
like duration for options or awards granted under the Plan, but the term of
an Incentive Stock Option may not extend more than ten (10) years from the
date of grant of such option and the term of options granted under the Plan
which do not qualify as Incentive Stock Options may not extend more than
fifteen (15) years from the date of granting of such option.
7. Exercise of Option or Award.
(a) The Committee shall have full and complete authority to determine
whether an option or award will be exercisable in full at any time or from
time to time during the term thereof, or to provide for the exercise thereof
in such installments, upon the occurrence of such events (such as termination
of employment for any reason) and at such times during the term of the option
as the Committee may determine and specify in the option or award agreement.
(b) The exercise of any option or award granted hereunder shall only be
effective at such time that the sale of Common Stock pursuant to such
exercise will not violate any state or federal securities or other laws.
(c) An optionee or grantee electing to exercise an option or award shall
give written notice to the Company of such election and of the number of
shares subject to such exercise. The full purchase price of such shares shall
be tendered with such notice of exercise. Payment shall be made to the
Company in cash (including bank check, certified check, personal check, or
money order), or, at the discretion of the Committee and as specified by the
Committee, (i) by delivering certificates for Common Stock already owned by
the optionee or grantee having a fair market value as of the date of grant
equal to the full purchase price of the shares, or (ii) by delivering the
optionee's or grantee's promissory note, which shall
<PAGE>
provide for interest at a rate not less than the minimum rate required to
avoid the imputation of income, original issue discount or a
below-market-rate loan pursuant to Sections 483, 1274 or 7872 of the Code or
any successor provisions thereto, or (iii) a combination of cash, the
optionee's or grantee's promissory note and such shares. The fair market
value of such tendered shares shall be determined as provided in Section 5
hereof. The optionee's or grantee's promissory note shall be a full recourse
liability of the optionee and may, at the discretion of the Committee, be
secured by a pledge of the shares being purchased. Until such person has been
issued the shares subject to such exercise, he or she shall possess no rights
as a shareholder with respect to such shares.
(d) The Committee may grant "restoration" options, separately or
together with another option, pursuant to which, subject to the terms and
conditions established by the Committee and any applicable requirements of
Rule 16b-3 promulgated under the Securities and Exchange Act of 1934 or any
other applicable law, the optionee would be granted a new option when the
payment of the exercise price of the option to which such "restoration"
option relates is made by the delivery of shares of Common Stock owned by the
optionee, as described in subsection (c) above, which new option would be an
option to purchase the number of shares not exceeding the sum of (a) the
number of shares of Common Stock tendered as payment upon the exercise of the
option to which such "restoration" option relates and (b) the number of
shares of Common Stock, if any, tendered as payment of the amount to be
withheld under applicable income tax laws in connection with the exercise of
the option to which such "restoration" option relates, as described in
Section 11 hereof. "Restoration" options may be granted with respect to
options previously granted under this Plan or any prior stock option plan of
the Company, and may be granted in connection with any option granted under
this Plan at the time of such grant. The purchase price of the Common Stock
under each such new option, and the other terms and conditions of such
option, shall be determined by the Committee consistent with the provisions
of the Plan.
8. Stock Appreciation Rights.
(a) Grant. At the time of grant of an option or award under the Plan (or
at any other time), the Committee, in its discretion, may grant a stock
appreciation right ("SAR") evidenced by an agreement in such form as the
Committee shall from time to time approve. Any such SAR may be subject to
restrictions on the exercise thereof as may be set forth in the agreement
representing such SAR, which agreement shall comply with and be subject to
the following terms and conditions and any additional terms and conditions
established by the Committee that are consistent with the terms of the Plan.
(b) Exercise. An SAR shall be exercised by the delivery to the Company
of a written notice which shall state that the holder thereof elects to
exercise his or her SAR as to the number of shares specified in the notice
and which shall further state what portion, if any, of the SAR exercise
amount (hereinafter defined) the holder thereof requests be paid in cash and
what portion, if any, is to be paid in Common Stock of the Company. The
Committee promptly shall cause to be paid to such
<PAGE>
holder the SAR exercise amount either in cash, in Common Stock of the
Company, or any combination of cash and shares as the Committee may by the
holder of the SAR or in the sole and absolute discretion of the Committee.
The SAR exercise amount is the excess of the fair market value of one share
of Common Stock on the date of exercise over the per share exercise price in
respect of which the SAR was granted, multiplied by the number of shares as
to which the SAR is exercised. For the purposes hereof, the fair market value
of the Common Stock shall be determined as provided in Section 5 hereof.
9. Restricted Stock Awards.
Awards of Common Stock subject to forfeiture and transfer restrictions
may be granted by the Committee. Any restricted stock award shall be
evidenced by an agreement in such form as the Committee shall from time to
time approve, which agreement shall comply with and be subject to the
following terms and conditions and any additional terms and conditions
established by the Committee that are consistent with the terms of the Plan:
(a) Grant of Restricted Stock Awards. Each restricted stock
award made under the Plan shall be for such number of shares of
Common Stock as shall be determined by the Committee and set forth
in the agreement containing the terms of such restricted stock
award. Such agreement shall set forth a period of time during
which the grantee must remain in the continuous employment of the
Company in order for the forfeiture and transfer restrictions to
lapse. If the Committee so determines, the restrictions may lapse
during such restricted period in installments with respect to
specified portions of the shares covered by the restricted stock
award. The agreement may also, in the discretion of the Committee,
set forth performance or other conditions that will subject the
Common Stock to forfeiture and transfer restrictions. The
Committee may, at its discretion, waive all or any part of the
restrictions applicable to any or all outstanding restricted stock
awards.
(b) Delivery of Common Stock and Restrictions. At the time of a
restricted stock award, a certificate representing the number of
shares of Common Stock awarded thereunder shall be registered in the
name of the grantee. Such certificate shall be held by the Company or
any custodian appointed by the Company for the account of the grantee
subject to the terms and conditions of the Plan, and shall bear such a
legend setting forth the restrictions imposed thereon as the
Committee, in its discretion, may determine. The grantee shall have
all rights of a shareholder with respect to the Common Stock,
including the right to receive dividends and the right to vote such
shares, subject to the following restrictions: (i) the grantee shall
not be entitled to delivery of the stock certificate until the
expiration of the restricted period and the fulfillment of any other
restrictive conditions set forth in the restricted stock agreement
with respect to such Common Stock; (ii) none of such shares may be
sold, assigned, transferred, pledged, hypothecated or otherwise
encumbered or disposed of during such restricted period or until after
the fulfillment of any such other restrictive conditions;
<PAGE>
and (iii) except as otherwise determined by the Committee, all of
the Common Stock shall be forfeited and all rights of the grantee
to such Common Stock shall terminate, without further obligation
on the part of the Company, unless the grantee remains in the
continuous employment of the Company or any subsidiary of the
Company or any other subsidiary of Fingerhut Companies, Inc. for
the entire restricted period in relation to which such Common
Stock was granted and unless any other restrictive conditions
relating to the restricted stock award are met. Any Common Stock,
any other securities of the Company and any other property (except
for cash dividends) distributed with respect to the Common Stock
subject to restricted stock awards shall be subject to the same
restrictions, terms and conditions as such restricted Common Stock.
(c) Termination of Restrictions. At the end of the restricted
period and provided that any other restrictive conditions of the
restricted stock award are met, or at such earlier time as
otherwise determined by the Committee, all restrictions set forth
in the agreement relating to the restricted stock award or in the
Plan shall lapse as to the restricted Common Stock subject
thereto, and a stock certificate for the appropriate number of
shares of Common Stock, free of the restrictions and the
restricted stock legend, shall be delivered to the grantee or his
beneficiary or estate, as the case may be. If the Common Stock is
traded on a securities exchange, the Company shall not be required
to deliver such certificates until such shares have been admitted
for trading on such securities exchange.
10. Performance Awards.
The Committee is further authorized to grant Performance Awards. Subject
to the terms of this Plan and any applicable award agreement, a Performance
Award granted under the Plan (i) may be denominated or payable in cash,
Common Stock (including, without limitation, restricted stock), other
securities, other awards, or other property and (ii) shall confer on the
holder thereof rights valued as determined by the Committee, in its
discretion, and payable to, or exercisable by, the holder of the Performance
Award, in whole or in part, upon the achievement of such performance goals
during such performance periods as the Committee, in its discretion, shall
establish. Subject to the terms of this Plan and any applicable award
agreement, the performance goals to be achieved during any performance
period, the length of any performance period, the amount of any Performance
Award granted, and the amount of any payment or transfer to be made by the
grantee and by the Company under any Performance Award shall be determined by
the Committee.
11. Income Tax Withholding.
In order to comply with all applicable federal or state income tax laws
or regulations, the Company may take such action as it deems appropriate to
ensure that all applicable federal or state payroll, withholding, income or
other taxes, which are the sole and absolute responsibility of an optionee or
grantee under the Plan, are
<PAGE>
withheld or collected from such optionee or grantee. In order to assist an
optionee or grantee in paying all federal and state taxes to be withheld or
collected upon exercise of an option or award which does not qualify as an
Incentive Stock Option hereunder, the Committee, in its absolute discretion
and subject to such additional terms and conditions as it may adopt, may
permit the optionee or grantee to satisfy such tax obligation by (i) electing
to have the Company withhold a portion of the shares otherwise to be
delivered upon exercise of such option or award with a fair market value,
determined in accordance with Section 5 hereof, equal to such taxes or (ii)
delivering to the Company Common Stock other than the shares issuable upon
exercise of such option or award with a fair market value, determined in
accordance with Section 5 hereof, equal to such taxes.
12. Additional Restrictions.
(a) The Committee shall have full and complete authority to determine
whether all or any part of the Common Stock acquired upon exercise of any of
the options or awards granted under the Plan shall be subject to restrictions
on the transferability thereof or any other restrictions affecting in any
manner the optionee's or grantee's rights with respect thereto, but any such
restriction shall be contained in the agreement relating to such options or
awards.
(b) No person, who is an employee of the Company at the time of grant,
may be granted any award or awards, the value of which awards are based
solely on an increase in the value of the Common Stock after the date of
grant of such awards, for more than 675,000 shares, in the aggregate, in any
one calendar year period. The foregoing annual limitation specifically
includes the grant of any awards representing "qualified performance-based
compensation" within the meaning of Section 162(m) of the Code.
13. Ten Percent Shareholder Rule.
Notwithstanding any other provision in the Plan, if at the time an
option is otherwise to be granted pursuant to the Plan the optionee owns
directly or indirectly (within the meaning of Section 424(d) of the Code)
Common Stock of the Company possessing more than ten percent (10%) of the
total combined voting power of all classes of stock of the Company or its
parent or subsidiary corporations, if any (within the meaning of Section
422(b)(6) of the Code), then any Incentive Stock Option to be granted to such
optionee pursuant to the Plan shall satisfy the requirements of Section
422(c)(5) of the Code, and the option price shall be not less than 110% of
the fair market value of the Common Stock determined as described herein, and
such option by its terms shall not be exercisable after the expiration of
five (5) years from the date such option is granted.
14. Non-Transferability.
Except as otherwise determined by the Committee or in an option or award
agreement, no option or award granted under the Plan shall be transferable by
an optionee or grantee, otherwise than by will or the laws of descent or
distribution
<PAGE>
and during the lifetime of an optionee or grantee, the option shall be
exercisable only by such optionee or grantee. Notwithstanding the foregoing,
no Incentive Stock Option shall be transferable by an optionee otherwise than
by will or the laws of descent or distribution.
15. Dilution or Other Adjustments.
If there shall be any change in the Common Stock through merger,
consolidation, reorganization, recapitalization, dividend in the form of
stock (of whatever amount), stock split or other change in the corporate
structure, appropriate adjustments in the Plan and outstanding options and
awards shall be made by the Committee. In the event of any such changes,
adjustments shall include, where appropriate, changes in the aggregate number
of shares subject to the Plan, the number of shares and the price per share
subject to outstanding options and awards and the amount payable upon
exercise of outstanding awards, in order to prevent dilution or enlargement
of option or award rights.
16. Amendment or Discontinuance of Plan.
Except to the extent prohibited by applicable law and unless otherwise
expressly provided in an option or award agreement or in the Plan:
(a) Amendments to the Plan. The Board of Directors of the Company may
amend, alter, suspend, discontinue or terminate the Plan; provided,
however, that, notwithstanding any other provisions of the Plan or any
option or award agreement, without the approval of the shareholders of the
Company, no such amendment, alteration, suspension, discontinuation or
termination shall be made that, absent such approval:
(i) would violate the rules or regulations of the National
Association of Securities Dealers, Inc. or The Nasdaq National Market
or any other securities exchange that are applicable to the Company;
or
(ii) would cause the Company to be unable, under the Code, to
grant Incentive Stock Options under the Plan.
(b) Amendments to Awards. The Committee may waive any conditions of or
rights of the Company under any outstanding option or award, prospectively
or retroactively. The Committee may not amend, alter, suspend, discontinue
or terminate any outstanding option or award, prospectively or
retroactively, without the consent of the Participant or holder or
beneficiary thereof, except as otherwise herein provided.
(c) Correction of Defects, Omissions and Inconsistencies. The
Committee may correct any defect, supply any omission or reconcile any
inconsistency in the Plan or any option or award in the manner and to the
extent it shall deem desirable to carry the Plan into effect.
<PAGE>
17. Time of Granting.
Nothing contained in the Plan or in any resolution adopted or to be
adopted by the Board of Directors or by the shareholders of the Company, and
no action taken by the Committee or the Board of Directors (other than the
execution and delivery of an option or award agreement), shall constitute the
granting of an option or award hereunder.
18. Section 16(b) Compliance.
The Plan is intended to comply in all respects with Rule 16b-3 or any
successor provision, as in effect from time to time, and in all events the
Plan shall be construed in accordance with the requirements of Rule 16b-3. If
any Plan provision does not comply with Rule 16b-3 as hereafter amended or
interpreted, the provision shall be deemed inoperative. The Board of
Directors, in its absolute discretion, may bifurcate the Plan so as to
restrict, limit or condition the use of any provision of the Plan to
participants who are officers or directors subject to Section 16 of the
Securities and Exchange Act of 1934, as amended, without so restricting,
limiting or conditioning the Plan with respect to other participants.
19. Effective Date and Termination of Plan.
(a) The Plan shall be submitted to the shareholders of the Company
for their approval and adoption.
(b) Unless the Plan shall have been discontinued as provided in
Section 16 hereof, the Plan shall terminate October 30, 2006. No option or
award may be granted after such termination, but termination of the Plan
shall not, without the consent of the optionee or grantee, alter or impair
any rights or obligations under any option or award theretofore granted.
<PAGE>
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
2,140,000 shares of Common Stock, $.01 par value per share, of the Company
("the Shares"), issuable pursuant to awards granted under the Company's
Long-Term Incentive and 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 Long-Term Incentive and 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
