<PAGE>
As Filed with the Securities and Exchange Commission on September 29, 2000
Registration No. 333-[ ]
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
----------------
FORM S-3
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 of (I.R.S. Employer
incorporation or organization) Identification No.)
10900 Wayzata Boulevard
Minnetonka, MN 55305
(952) 525-5020
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
----------------
Lorraine E. Waller, Esq.
Senior Vice President, General Counsel
Metris Companies Inc.
10900 Wayzata Boulevard
Minnetonka, MN 55305
(952) 525-5020
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------
Copy To:
Richard G. Clemens, Esq.
Sidley & Austin
Bank One Plaza
10 South Dearborn Street
Chicago, Illinois 60603
----------------
Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
<CAPTION>
Proposed
Proposed Maximum
Title of Each Class of Amount Maximum Aggregate Amount of
Securities to be to be Offering Price Offering Registration
Registered Registered(1) Per Unit(2) Price(2) Fee
-------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities(3)......
Warrants to Purchase
Debt Securities(4).....
Common Stock, $.01 par
value(5)...............
Warrants to Purchase
Common Stock(4)........ $250,000,000 100% $250,000,000 $66,000
Preferred Stock, $.01
par value(5)...........
Depositary Shares(5)....
Currency Warrants.......
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
</TABLE>
(1) Such indeterminate number or amount of debt securities, warrants to
purchase debt securities, common stock, warrants to purchase common stock,
preferred stock, depositary shares and currency warrants as may from time
to time be issued at indeterminate prices. The amount registered is in U.S.
dollars or the equivalent thereof in foreign currency or currency units.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act. The aggregate public
offering price of the securities registered hereby (including the exercise
price of any securities issuable upon exercise of those securities) will
not exceed $250,000,000 in U.S. dollars or the equivalent thereof in
foreign currency or currency units.
(3) Debt securities may be issued at an original issue discount.
(4) Warrants to purchase debt securities may be offered and sold separately or
together with other debt securities. Warrants to purchase common stock may
be offered and sold separately or together with debt securities or shares
of common stock.
(5) Also includes such indeterminate number of shares of common stock and
preferred stock as may be issued upon conversion or exchange of any debt
securities or preferred stock that provide for conversion into or exchange
for other securities. No separate consideration will be received for the
common stock or preferred stock issuable upon such conversion or exchange.
----------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
Pursuant to Rule 429 under the Securities Act, this registration statement
contains a combined prospectus that also relates to $750,000,000 maximum
aggregate offering price of debt securities, common stock and preferred stock
previously registered pursuant to a registration statement filed by Metris
Companies Inc. on Form S-3 (File No. 333-60973), under which no securities have
been issued. The filing fee of $221,500 associated with such securities was
previously paid with that registration statement.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is effective. This prospectus is not an +
+offer to sell these securities and it is not soliciting an offer to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED SEPTEMBER 29, 2000
PROSPECTUS
$1,000,000,000
Metris Companies Inc.
Debt Securities, Debt Warrants, Common Stock, Common Stock Warrants, Preferred
Stock, Depositary Shares and Currency Warrants
-----------
Metris Companies Inc. intends to offer at one or more times the following
securities with a total offering price not to exceed $1,000,000,000:
. debt securities;
. warrants to purchase debt securities (debt warrants);
. shares of our common stock;
. warrants to purchase shares of our common stock (common stock warrants);
. shares of our preferred stock, which may be represented by depositary
shares; and
. warrants to receive from us the cash value in U.S. dollars of the right to
purchase or sell foreign currency or currency units to be designated by us
at the time of the offering (currency warrants).
We will describe the terms of these securities in supplements to this
prospectus. You should read both the prospectus and the supplements carefully
before you invest.
Our common stock is listed on the New York Stock Exchange under the symbol
"MXT."
-----------
This prospectus may be used to offer and sell these securities only if
accompanied by a prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
[ ], 2000
<PAGE>
Table of Contents
<TABLE>
<S> <C>
About this Prospectus..................................................... 2
Where You Can Find More Information....................................... 2
Metris Companies Inc...................................................... 4
Use of Proceeds........................................................... 4
Ratios of Earnings to Fixed Charges and Earnings to Fixed Charges and
Preferred Stock Dividends................................................ 4
Description of Debt Securities............................................ 5
Description of Debt Warrants.............................................. 14
</TABLE>
<TABLE>
<S> <C>
Description of Common Stock and Preferred Stock............................. 15
Description of Depositary Shares............................................ 17
Description of Common Stock Warrants........................................ 20
Description of Currency Warrants............................................ 21
Plan of Distribution........................................................ 22
Legal Matters............................................................... 23
Experts..................................................................... 23
</TABLE>
About this Prospectus
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission ("SEC") utilizing a "shelf" registration
process. Under this shelf registration process, we may, from time to time, sell
the securities described in this prospectus in one or more offerings with a
total offering price not to exceed $1,000,000,000. This prospectus provides you
with a general description of the securities. Each time we sell securities, we
will provide a prospectus supplement that will contain specific information
about the terms of the securities being sold in that offering. The prospectus
supplement may also add, update or change information in this prospectus.
Please carefully read both this prospectus and any prospectus supplement
together with additional information described under the heading "Where You Can
Find More Information."
We are not offering the securities in any state where the offer is not
permitted.
You should not assume that the information in this prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of each of those documents.
Where You Can Find More Information
We file annual, quarterly and special reports and other information with the
SEC. You may read and copy any document we file at the SEC's public reference
room at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the regional
offices of the SEC located at 7 World Trade Center, 13th Floor, New York, New
York 10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Please call the SEC at 1-800-SEC-0330 for further information
on the operation of the public reference room. Our SEC filings are also
available to the public over the Internet on the SEC's web site at
http://www.sec.gov. Our common stock is listed on the New York Stock Exchange,
and you may inspect copies of any documents we file with the SEC at the offices
of The New York Stock Exchange, Inc., 20 Broad Street, New York, NY 10005.
The SEC allows us to "incorporate by reference" the information we file with
it, which means that we can disclose important information to you by referring
you to previously filed documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the following documents we filed with the SEC (file
number 1-12351) and any future filings that we make with the SEC under Sections
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 until we or
any underwriters sell all of the securities:
. Our Annual Report on Form 10-K for the year ended December 31, 1999;
. Our Quarterly Reports on Form 10-Q for the quarters ended March 31 and June
30, 2000; and
. The description of our common stock and Series C Perpetual Convertible
Preferred Stock which is contained in our Registration Statement filed with
the SEC under Section 12 of the Exchange Act, including any subsequent
amendment or report filed for the purpose of updating such description.
2
<PAGE>
You may request a copy of these filings at no cost, by writing or calling us
at the following address:
Metris Companies Inc.
10900 Wayzata Boulevard
Minnetonka, MN 55305
(952) 525-4860
Attention: Investor Relations
You should rely only on the information incorporated by reference or
provided in this prospectus and any prospectus supplement. We have not
authorized anyone else to provide you with different information.
3
<PAGE>
Metris Companies Inc.
We are an information-based direct marketer and provider of consumer credit
products and enhancement services primarily to moderate income consumers and
customers of third party clients. Our primary credit products are unsecured and
secured credit cards issued by our subsidiary, Direct Merchants Credit Card
Bank, National Association. Our existing and prospective credit accountholders
include customers for whom general credit bureau information is available and
other third party sources, including customer lists and databases. We market
our enhancement services, including debt waiver programs, membership clubs,
extended service plans and third-party insurance, to our credit card customers
and customers of third parties.
Our principal executive offices are located at 10900 Wayzata Boulevard,
Minnetonka, Minnesota 55305, and our telephone number is (952) 525-5020.
Use of Proceeds
Unless we indicate otherwise in the prospectus supplement, we expect to use
the net proceeds from the sale of the securities for general corporate
purposes. We will describe in a prospectus supplement any specific allocation
of the proceeds to a particular purpose that we have made at the date of such
prospectus supplement.
Ratios of Earnings to Fixed Charges and
Earnings to Fixed Charges and Preferred Stock Dividends
The ratios of our earnings to our fixed charges and the ratios of our
earnings to our fixed charges and preferred stock dividends for each of the
periods indicated are as follows:
<TABLE>
<CAPTION>
Six Months
Year Ended December 31, Ended June 30,
------------------------ ---------------
1995 1996 1997 1998 1999 1999 2000
---- ---- ---- ---- ---- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratios of Earnings to Fixed Charges.. 6.88 8.26 5.67 3.86 4.21 4.93 3.99
Ratios of Earnings to Fixed Charges
and Preferred Stock Dividends....... 6.88 8.26 5.67 3.66 2.50 2.77 2.75
</TABLE>
For these ratios, earnings include income from continuing operations before
income taxes, fixed charges and amortization of interest capitalized (but not
interest capitalized during the period). Fixed charges include interest expense
(including interest capitalized during the period) plus the portion of rents we
believe to be representative of the interest factor. Our earnings and fixed
charges include the earnings and fixed charges of our company and our
subsidiaries on a consolidated basis.
4
<PAGE>
Description of Debt Securities
We will issue the debt securities, consisting of notes, debentures and other
evidences of indebtedness, in one or more series. We may issue senior debt
securities and/or subordinated debt securities.
Unless we state otherwise in the applicable prospectus supplement, we will
issue the debt securities pursuant to indentures (as applicable, the "senior
indenture" or the "subordinated indenture," each an "indenture" and together
the "indentures"), in each case between us and U.S. Bank Trust National
Association. We have summarized selected provisions of the indentures below.
This is a summary and is not complete. It does not describe certain exceptions
and qualifications contained in the indentures or the debt securities. If you
would like more information on the provisions of the indentures, you should
review the form of senior indenture and the form of subordinated indenture,
each of which we have incorporated by reference as an exhibit to the
registration statement of which this prospectus is a part.
In the summary, we have included references to article and section numbers
of the applicable indenture so that you can easily locate the provisions we
describe. Capitalized terms used in the summary have the meanings specified in
the applicable indenture.
Senior Debt Securities
General
The senior debt securities will be unsecured, will rank equally in right of
payment with all of our other senior unsecured indebtedness and will be
unconditionally guaranteed by certain of our subsidiaries. This means that the
senior debt securities will rank senior in right of payment to all of our
subordinated indebtedness, including any subordinated debt securities that we
may issue in the future, but in effect will rank junior to all of our secured
indebtedness and the obligations of our subsidiaries that are not guarantors.
The senior indenture does not limit the amount of senior debt securities that
we may issue.
The senior indenture permits us to issue senior debt securities in one or
more series. Each series of senior debt securities may have different terms.
The terms of any series of senior debt securities will be set forth in, or
determined in accordance with, a resolution of our board of directors or in a
supplement to the indenture relating to that series. (Section 2.02) Reference
is made to the applicable prospectus supplement for information with respect to
any covenants described below that are applicable to the senior debt securities
of a series and with respect to deletions from, modifications of or additions
to the Events of Default.
A supplement to this prospectus will describe specific terms relating to the
senior debt securities being offered. These terms will include some or all of
the following:
. the title of the series of senior debt securities;
. the total principal amount and authorized denominations;
. the maturity date or dates;
. the public offering price;
. the interest rate or rates, if any (which may be fixed or floating), and
interest payment dates;
. the currency or currencies in which payment of the offering price and/or
principal and interest may be made;
. the manner of payment of principal and interest, if any;
. where the senior debt securities may be exchanged or transferred;
. whether (and if so, when) the senior debt securities can be redeemed by us
or the holder;
. under what circumstances, if any, we will pay additional amounts on the
senior debt securities to non-U.S. holders in respect of taxes;
. whether (and if so, when) the senior debt securities may be converted into
or exchanged for other securities;
. whether there will be a sinking fund; and
. any other terms of the series. (Section 2.02)
Each series of senior debt securities may be a new issue with no established
trading market. Unless
5
<PAGE>
otherwise described in the applicable prospectus supplement, we will not list
the senior debt securities on any securities exchange. We cannot assure you
that there will be a liquid trading market for any series of senior debt
securities.
We may repurchase senior debt securities at any price in the open market or
otherwise. Senior debt securities we purchase may, in our discretion, be held
or resold, canceled or used to satisfy any sinking fund or redemption
requirements.
Senior debt securities bearing no interest or interest at a rate which, at
the time of issuance, is below the prevailing market rate will be sold at a
discount below their stated principal amount. The applicable prospectus
supplement will describe any special United States federal income tax
considerations applicable to any of these discounted senior debt securities (or
to certain other senior debt securities issued at par which are treated as
having been issued at a discount for United States federal income tax
purposes).
We will also describe in the applicable prospectus supplement any special
federal income tax considerations applicable to senior debt securities
denominated in a foreign currency or currency unit or in respect of which we
may pay the principal, premium and interest, if any in a foreign currency or
currency unit.
Form and Exchange of Senior Debt Securities
Unless otherwise described in the applicable prospectus supplement, all
senior debt securities will be fully registered and will be in either book-
entry form or in definitive certificated form.
Senior debt securities issued in definitive certificated form will be
transferable or exchangeable at the agency maintained for such purpose as we
may designate from time to time. (Sections 2.04 and 2.07) We may not impose any
service charge, other than any required tax or governmental charge, on the
transfer or exchange of any senior debt securities. (Section 2.07)
For more information concerning senior debt securities issued in book-entry
form, see "Global Debt Securities."
Subsidiary Guarantees
We will cause each of our restricted subsidiaries (which are those
subsidiaries that we have not designated as unrestricted subsidiaries in
accordance with the senior indenture, such as Direct Merchants Credit Card
Bank), other than subsidiaries that qualify as securitization entities, to
guarantee our payment obligations with respect to the senior debt securities on
a senior unsecured basis, jointly and severally with any other guarantors. Each
subsidiary guarantee will be limited, however, so as to prevent it from
constituting a fraudulent conveyance under applicable law. (Section 10.04)
The senior indenture prohibits each of our guarantors from consolidating or
merging with or into any other corporation, person or entity, unless the
surviving or successor corporation:
. assumes all of the guarantor's obligations under the subsidiary guarantee;
. is not in default immediately after consummation of the transaction; and
. immediately after consummation of the transaction, will have a consolidated
net worth equal to or greater than the consolidated net worth of the
guarantor immediately preceding the transaction and, at the time of the
transaction and after giving pro forma effect thereto, would be permitted to
incur at least $1.00 of additional indebtedness pursuant to the restrictions
contained in the senior indenture.
These restrictions do not, however, prohibit any wholly owned restricted
subsidiary from consolidating or merging with or into any guarantor, provided
the guarantor survives, nor do they prohibit any guarantor from consolidating
or merging with or into our company.
A guarantor will be released of its obligations under its subsidiary
guarantee in connection with a sale of all of the assets or capital stock of
such guarantor if we apply the net cash proceeds from that sale as required by
the restriction on asset sales contained in the senior indenture.
The senior indenture permits us to designate, from time to time, certain of
our subsidiaries as unrestricted subsidiaries. Those unrestricted
6
<PAGE>
subsidiaries will not be subject to many of the restrictions contained in the
senior indenture and will not guarantee the senior debt securities. This means
that in the event of a bankruptcy, liquidation or reorganization of an
unrestricted subsidiary, that subsidiary must first pay its own creditors
before it can distribute any of its assets to us.
Consolidation, Merger or Sale of Assets
The senior indenture prohibits us from consolidating or merging with or into
any other corporation, person or entity, or selling or transferring all or
substantially all of our property and assets to any other corporation, person
or entity unless immediately prior to the transaction we are not in default and
the surviving or successor corporation:
. is a domestic corporation;
. assumes all of our obligations under the senior indenture;
. is not in default immediately after consummation of the transaction; and
. immediately after consummation of the transaction, will have a consolidated
net worth equal to or greater than our consolidated net worth immediately
preceding the transaction and, at the time of the transaction and after
giving pro forma effect thereto, would be permitted to incur at least $1.00
of additional indebtedness pursuant to the restrictions contained in the
senior indenture. (Section 5.01)
These restrictions do not, however, prohibit us from consolidating or
merging with any of our wholly owned restricted subsidiaries, provided we are
the surviving corporation.
Under the senior indenture, consummation of one or more securitization
transactions will not constitute the sale of all or substantially all of our
properties or assets.
Upon any permitted consolidation, merger, sale or other disposition, we will
be discharged from, and the surviving or successor corporation will succeed to,
all of our obligations under the senior indenture and the senior debt
securities. (Section 5.02)
Change of Control
Within 30 days following any change of control, we must make an offer to
purchase all senior debt securities then outstanding at a purchase price in
cash equal to 101% of the aggregate principal amount, plus accrued and unpaid
interest, if any, to the date of purchase. Each holder will then be entitled to
tender all or any portion of the senior debt securities owned by him or her
pursuant to the offer to purchase. (Section 4.15) The senior indenture defines
"change of control" to include, among other things, the acquisition by any
person, other than certain permitted holders, of more than 35% of the total
voting power of our then outstanding voting stock.
If a change of control occurs which also constitutes an event of default
under our credit facility, the lenders under the credit facility would be
entitled to exercise the remedies available to a secured lender under
applicable law and pursuant to the terms of the credit facility. Accordingly,
any claims of these lenders with respect to our assets will be prior to the
claims of the holders of the senior debt securities to the extent of the
lenders' security interest in those assets.
Certain Restrictions
Unless otherwise indicated in the applicable prospectus supplement, the
following provisions will apply to the senior debt securities:
. limitations on restricted payments such as dividends or certain investments;
. limitations on indebtedness;
. limitations on liens;
. restrictions regarding asset sales; and
. restrictions regarding transactions with affiliates.
Certain restrictions may terminate in the event that the senior debt
securities obtain an investment grade rating. The applicable prospectus
supplement will set forth additional information concerning these covenants and
restrictions.
7
<PAGE>
Events of Default
"Event of Default" means, with respect to any series of senior debt
securities, any of the following:
. failure to pay interest or any liquidated damages that continues for a
period of 30 days after payment is due;
. failure to make any principal or premium payment when due;
. failure to comply with certain of the restrictions we refer to under the
caption "Certain Restrictions;"
. failure to comply with any of our other agreements in the senior indenture
for 30 days after notice to us of such failure from (1) the trustee or (2)
the holders of at least 25% in aggregate principal amount of the outstanding
senior debt securities affected by such failure;
. default under any of our other debt agreements pursuant to which we have
borrowed or guaranteed an aggregate principal amount of $5 million or more
and which default (1) constitutes a failure to make any principal, premium,
if any, or interest payment when due or (2) accelerates the payment of such
debt;
. failure to pay final judgments aggregating in excess of $5 million, which
judgments are not paid, discharged or stayed for a period of 60 days;
. certain events of bankruptcy, insolvency or reorganization of our company;
and
. except as permitted by the senior indenture, certain events resulting in the
unenforceability or ineffectiveness of a subsidiary guarantee or the denial
or disaffirmance by a guarantor of its obligations under its subsidiary
guarantee. (Section 6.01)
In general, the trustee is required to give notice of a default with respect
to a series of senior debt securities to the holders of that series. The
trustee may withhold notice of any default (except a default in payment of
principal of or interest on any senior debt security) if the trustee determines
it is in the best interest of the holders of that series to do so. (Section
7.05)
An Event of Default for a particular series of senior debt securities does
not necessarily constitute an Event of Default for other series of senior debt
securities.
If there is a continuing Event of Default, then the trustee or the holders
of at least 25% in principal amount of each outstanding series of senior debt
securities affected by the Event of Default (voting as separate classes) may
require us to repay the principal and accrued interest on the affected series
immediately. In the case of an Event of Default arising from certain events of
bankruptcy or insolvency, we will be required to repay the principal and
accrued interest on all outstanding senior debt securities without any action
by the trustee or any holder. (Section 6.02)
Subject to certain conditions, the requirement to pay with respect to a
series of senior debt securities may be annulled, and past defaults may be
waived by the holders of a majority in principal amount of that series.
(Section 6.04) A continuing default in payment of principal of, or premium,
interest or additional amounts, if any, on the senior debt securities may be
waived only by all holders of senior debt securities of that series.
Prior to an Event of Default, the trustee is required to perform only the
specific duties stated in the senior indenture, and after an Event of Default,
the trustee must exercise the same degree of care as a prudent individual would
exercise or use under the circumstances in the conduct of his or her own
affairs. (Section 7.01)
The trustee may refuse to enforce the senior indenture or the senior debt
securities unless it first receives satisfactory security or indemnity. Subject
to certain limitations specified in the senior indenture, the holders of a
majority in principal amount of the senior debt securities of an affected
series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the trustee. (Section 7.02)
Satisfaction and Discharge of the Senior Indenture
We may elect either (1) to defease and be discharged from all our
obligations with respect to the outstanding senior debt securities of a series
8
<PAGE>
(except as otherwise specified in the senior indenture) or (2) to be released
from our obligations with respect to certain covenants relating to that series
of senior debt securities, if we deposit with the trustee, in trust, money or
the equivalent in securities of the government which issued the currency in
which the senior debt securities are denominated sufficient for payment of all
principal, premium, if any, interest and any additional amounts on those senior
debt securities when due. (Sections 8.02 and 8.03) In either case, holders of
those senior debt securities will only be able to look to the trust fund for
payment of the principal, premium, if any, interest and any additional amounts
on their senior debt securities until maturity.
As a condition to discharging our obligations as described in the preceding
paragraph, we must deliver to the trustee an opinion of counsel confirming that
holders of senior debt securities of the relevant series will not recognize
income, gain or loss for federal income tax purposes as a result of the deposit
and discharge and will be subject to federal income tax on the same amounts and
in the same manner and at the same times as would have been the case if the
deposit and discharge had not occurred. That opinion, in the case of an
election under clause (1) of the preceding paragraph, must refer to and be
based upon a ruling of the Internal Revenue Service or a change in applicable
federal income tax law occurring after the date of the senior indenture.
(Section 8.03)
Modification of the Senior Indenture
The senior indenture permits us, with certain exceptions, to change our
rights and obligations and the rights of the holders of a series of senior debt
securities with the consent of the holders of a majority in aggregate principal
amount of the outstanding senior debt securities of that series. But we may not
change the terms of payment of principal or interest, the premium, if any,
payable upon redemption, or the amount to be paid upon an acceleration of
maturity upon an Event of Default, reduce the percentage required for changes
to the senior indenture, modify the provisions relating to the ranking or
priority of any senior debt security or guarantee in a manner adverse to the
holders or reduce the percentage required for a waiver of defaults without the
consent of the holder of each senior debt security affected by such change.
(Section 9.02)
In certain circumstances, we may amend the senior indenture without the
consent of the holders of outstanding senior debt securities to effect the
assumption of our obligations under the senior indenture by a successor
corporation, to impose additional restrictions and Events of Default, to
correct any mistakes or defects in the senior indenture, to add a guarantor or
for other specified purposes. (Section 9.01)
Reports to Trustee
We are required to provide the trustee with an officers' certificate each
fiscal year stating whether or not, to the knowledge of the certifying officers
in the course of performance of their duties as officers, we are in compliance
with the requirements of the senior indenture and no default exists and if a
default has occurred, identifying the nature of the default of which the
officers are aware. (Section 4.08)
Regarding the Trustee
We maintain ordinary banking relationships and credit facilities with a
number of banks, including the trustee, U.S. Bank Trust National Association.
Subordinated Debt Securities
General
The subordinated debt securities will be unsecured and will rank junior in
right of payment to all of our senior and secured indebtedness. The
subordinated indenture does not limit the amount of subordinated debt
securities or other indebtedness that we may issue.
The subordinated indenture permits us to issue subordinated debt securities
in one or more series. Each series of subordinated debt securities may have
different terms. The terms of any series of subordinated debt securities will
be set forth in (or determined in accordance with) a resolution of our board of
directors or in a supplement to the subordinated indenture relating to that
series. (Section 3.01)
A supplement to this prospectus will describe specific terms relating to the
subordinated debt
9
<PAGE>
securities being offered. These terms will include some or all of the terms
described above with respect to the senior debt securities under "Senior Debt
Securities--General." (Section 3.01)
Each series of subordinated debt securities may be a new issue with no
established trading market. Unless otherwise described in the applicable
prospectus supplement, we will not list the subordinated debt securities on
any securities exchange. We cannot assure you that there will be a liquid
trading market for any series of subordinated debt securities.
We may repurchase subordinated debt securities at any price in the open
market or otherwise. Subordinated debt securities we purchase may, in our
discretion, be held or resold, canceled or used to satisfy any sinking fund or
redemption requirements.
Subordinated debt securities bearing no interest or interest at a rate
which, at the time of issuance, is below the prevailing market rate will be
sold at a discount below their stated principal amount. The applicable
prospectus supplement will describe any special United States federal income
tax considerations applicable to any of these discounted subordinated debt
securities (or to certain other subordinated debt securities issued at par
which are treated as having been issued at a discount for United States
federal income tax purposes).
We will also describe in the applicable prospectus supplement any special
federal income tax considerations applicable to subordinated debt securities
denominated in a foreign currency or currency unit or in respect of which we
may pay the principal, premium and interest, if any in a foreign currency or
currency unit.
Form and Exchange of Subordinated Debt Securities
Unless otherwise described in a prospectus supplement, all subordinated
debt securities will be fully registered and will be in either book-entry form
or in definitive certificated form.
Subordinated debt securities issued in definitive certificated form will be
transferable or exchangeable at the agency maintained for such purpose as we
may designate from time to time. (Sections 3.05 and 9.02) We may not impose
any service charge, other than any required tax or governmental charge, on the
transfer or exchange of any subordinated debt securities. (Section 3.05)
For more information concerning subordinated debt securities issued in
book-entry form, see "Global Debt Securities."
Subordination Under the Subordinated Indenture
The subordinated debt securities will be subordinated in right of payment
to all of our senior indebtedness to the extent provided in the indenture.
(Section 12.01) "Senior indebtedness" means:
. all of our existing and future indebtedness which is for money borrowed or
which is created, incurred or assumed in connection with the acquisition of
any business, properties or assets, including securities;
. any third-party indebtedness of the kind described in the preceding clause,
the payment for which we are responsible or liable as guarantor or
otherwise; and
. all amendments, renewals, extensions and refundings of the foregoing
indebtedness, unless the instrument evidencing or securing that
indebtedness provides it does not rank senior to the subordinated debt
securities.
The subordinated debt securities will continue to rank junior to our senior
indebtedness notwithstanding any amendment, modification or waiver of any term
or extension or renewal of the senior indebtedness. Senior indebtedness does
not include:
. our indebtedness to any of our subsidiaries;
. liabilities we incur in the ordinary course of business; and
. any indebtedness which by its terms is expressly made equal (pari passu) in
right of payment with or subordinated by any other subordinated debt.
(Section 12.02)
If we default in the payment of any principal of premium, interest or any
additional amounts on any senior indebtedness when due and payable, whether at
maturity or on a date fixed for prepayment or declaration or otherwise, or an
event of default
10
<PAGE>
occurs with respect to any senior indebtedness permitting its holders to
accelerate the maturity thereof and we have been given written notice of that
event by those holders, then unless and until that default in payment or event
of default has been cured or waived or ceases to exist, we may not make, or
agree to make, any direct or indirect payments in cash, property or securities,
by set-off or otherwise, on account or in respect of our subordinated debt,
including the subordinated debt securities. (Section 12.04)
In addition, in the event of:
. any insolvency, bankruptcy, receivership, liquidation, reorganization,
readjustment, composition or other similar proceeding relating to our
company or our property;
. any proceeding for the liquidation, dissolution or other winding-up of our
company, voluntary or involuntary, whether or not involving insolvency or
bankruptcy proceedings;
. any assignment by us for the benefit of our creditors; or
. any other marshaling of our assets;
we must first pay in full (or make provision for such payment) in cash or cash
equivalents all of our outstanding senior indebtedness (including interest
accruing after the commencement of any proceeding, assignment or marshaling of
our assets) before we may make any payment or distribution, whether in cash,
securities or other property, on account of subordinated debt. In that case,
any payment or distribution which would, but for the subordination provisions,
be payable or deliverable in respect of subordinated debt must be paid or
delivered indirectly to the holders of senior indebtedness, or to their
representative or trustee, in accordance with the priorities then existing
among those holders until all senior indebtedness has been paid in full.
(Section 12.03) No act or failure to act on our part can prejudice the right of
any present or future holder of senior indebtedness to enforce subordination of
the subordinated debt. (Section 12.11)
Our senior indebtedness will not be deemed to have been paid in full unless
and until the holders thereof have received cash, securities or other property
equal to the amount of the senior indebtedness then outstanding. Upon the
payment in full of all senior indebtedness, the holders of subordinated debt,
including the subordinated debt securities, will be subrogated to all the
rights of the holders of senior indebtedness to receive any further payments or
distributions applicable to the senior indebtedness until all subordinated debt
has been paid in full, and any payments or distributions received by the
holders of subordinated debt, by reason of such subrogation, will, as between
us and our creditors (other than the holders of senior indebtedness, on the one
hand, and the holders of subordinated debt, on the other), be deemed to be a
payment by us on account of senior indebtedness, and not on account of
subordinated debt. (Section 12.06)
We will describe in a prospectus supplement any changes we make to the
foregoing subordination provisions prior to the issuance of a particular series
of subordinated debt securities.
Consolidation, Merger or Sale of Assets
The subordinated indenture prohibits us from consolidating or merging with
or into any other corporation, person or entity or selling or transferring all
or substantially all of our property and assets to any other corporation,
person or entity unless the surviving or successor corporation:
. is a domestic corporation;
. assumes our obligations under the indenture;
. is not in default under the subordinated indenture immediately after the
consummation of the transaction; and
. if as a result of the transaction, our property or assets become subject to
an encumbrance not permitted by the terms of the subordinated debt
securities, takes steps to secure the subordinated debt securities equally
and ratably with the other indebtedness secured thereunder. (Section 7.01)
Upon any permitted consolidation, merger or sale, we will be discharged
from, and the surviving or successor corporation will succeed to, all of our
11
<PAGE>
obligations under the subordinated indenture and the subordinated debt
securities. (Section 7.01)
Events of Default
"Event of Default" means, with respect to any series of subordinated debt
securities, any of the following:
. failure to pay interest or any additional amounts that continues for a
period of 30 days after payment is due;
. failure to make any principal, premium or mandatory sinking fund payment
when due;
. failure to comply with any of our other agreements contained in the
subordinated indenture or in the subordinated debt securities for 60 days
after notice to us of such failure from (1) the trustee or (2) the holders
of at least 25% of the outstanding subordinated debt securities affected by
such failure;
. default under any of our other debt agreements pursuant to which we have
borrowed an aggregate principal amount of $25 million or more and which
default (1) constitutes a failure to make any principal payment when due or
(2) accelerates the payment of such debt, which acceleration is not
remedied, cured or waived; and
. certain events of bankruptcy, insolvency or reorganization of our company.
(Section 5.01)
"Event of Default" specifically excludes a default under any of our secured
debt for which the lender has recourse only to the collateral pledged for
repayment and where the fair market value of that collateral does not exceed
two percent of our total assets (as defined in the subordinated indenture) at
the time of default.
In general, the trustee is required to give notice of a default with respect
to a series of subordinated debt securities to the holders of that series. The
trustee may withhold notice of any default (except a default in payment of
principal of or interest on any subordinated debt security) if the trustee
determines it is in the best interest of the holders of that series to do so.
(Section 6.05)
An Event of Default for a particular series of subordinated debt securities
does not necessarily constitute an Event of Default for other series of
subordinated debt securities.
If there is a continuing Event of Default, then the trustee or the holders
of at least 25% in principal amount of each outstanding series of subordinated
debt securities affected by the Event of Default (voting as separate classes)
may require us to repay the principal and accrued interest on the affected
series immediately. Subject to certain conditions, the requirement to pay with
respect to a series of subordinated debt securities may be annulled, and past
defaults may be waived by the holders of a majority in principal amount of that
series. (Sections 5.02 and 5.07) A continuing default in payment of principal
of, or premium, interest or additional amounts, if any, on the subordinated
debt securities may be waived only by all holders of subordinated debt
securities of the series.
Prior to an Event of Default, the trustee is required to perform only the
specific duties stated in the subordinated indenture, and after an Event of
Default, the trustee must exercise the same degree of care as a prudent
individual would exercise or use under the circumstances in the conduct of his
or her own affairs. (Section 6.01)
The trustee may refuse to enforce the subordinated indenture or the debt
securities unless it first receives satisfactory security or indemnity. Subject
to certain limitations specified in the subordinated indenture, the holders of
a majority in principal amount of the subordinated debt securities of an
affected series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the trustee. (Section
5.08)
Satisfaction and Discharge of the Subordinated Indenture
If indicated in the applicable prospectus supplement, we may elect to
satisfy or discharge our obligations under the subordinated indenture in the
same manner as required by the senior indenture. (Sections 4.03, 4.05 and 4.06)
See "Senior Debt Securities--Satisfaction and Discharge of the Senior
Indenture.".
In addition, in order to be discharged, no event or condition can exist
that, pursuant to the
12
<PAGE>
provisions described under "--Subordination Under the Subordinated Indenture"
above, would prevent us from making payments of principal of, and premium and
interest, if any, and any additional amounts on the subordinated debt
securities.
Modification of the Subordinated Indenture
The provisions governing modification of the subordinated indenture are the
same as those in the senior indenture as described above under "Senior Debt
Securities--Modification of the Senior Indenture." (Section 8.02)
Reports to Trustee
Like the senior indenture, the subordinated indenture requires us to provide
the trustee with an officers' certificate each fiscal year stating whether or
not, to the knowledge of the certifying officers in the course of performance
of their duties as officers, we are in compliance with the requirements of the
subordinated indenture and no default exists and if a default has occurred,
identifying the nature of the default of which the officers are aware. (Section
9.05)
Regarding the Trustee
We maintain ordinary banking relationships and credit facilities with a
number of banks, including the trustee, U.S. Bank Trust National Association.
Global Debt Securities
Debt securities issued in book-entry form will be issued in the form of one
or more fully registered global securities that will be deposited with DTC, New
York, New York or its nominee. This means that we will not issue certificates
to each holder. Each global security will be issued to DTC, which will keep a
computerized record of its participants (for example, your broker) whose
clients have purchased debt securities. Each participant will then keep a
record of its clients who purchased the debt securities. Unless it is exchanged
in whole or in part for a certificate, a global security may not be
transferred; except that DTC, its nominees, and their successors may transfer a
global security as a whole to one another.
Beneficial interests in global securities will be shown on, and transfers of
global securities will be made only through, records maintained by DTC and its
participants. If you are not a participant in DTC, you may beneficially own
debt securities held by DTC only through a participant.
The laws of some states require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such limits and laws
may impair the ability to transfer beneficial interests in a global security.
DTC has provided us the following information: DTC is a limited-purpose
trust company organized under the New York Banking Law, a "banking
organization" within the meaning of the New York Banking Law, a member of the
Federal Reserve System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code and a "clearing agency" registered under the
provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds
securities that its participants deposit with DTC. DTC also facilitates the
settlement among participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized book-entry
changes in participants' accounts, thereby eliminating the need for physical
movement of securities certificates. Participants include securities brokers
and dealers, banks, trust companies, clearing corporations and certain other
organizations.
DTC is owned by a number of its participants and by the New York Stock
Exchange, Inc., The American Stock Exchange LLC and the National Association of
Securities Dealers, Inc.
Access to the DTC system is also available to others such as securities
brokers and dealers, banks and trust companies that clear through or maintain a
custodial relationship with a participant, either directly or indirectly. The
rules applicable to DTC and its participants are on file with the SEC.
We will wire principal and interest payments to DTC's nominee. We and the
trustee will treat DTC's nominee as the owner of the global securities for all
purposes. Accordingly, we, the trustee and any paying agent will have no direct
responsibility or liability to pay amounts due on the global securities to
owners of beneficial interests in the global securities.
13
<PAGE>
It is DTC's current practice, upon receipt of any payment of principal or
interest, to credit participants' accounts on the payment date according to
their respective holdings of beneficial interests in the global securities as
shown on DTC's records. In addition, it is DTC's current practice to assign any
consenting or voting rights to participants whose accounts are credited with
debt securities on a record date, by using an omnibus proxy. Payments by
participants to owners of beneficial interests in the global securities and
voting by participants will be governed by standing instructions and customary
practices between the participants and owners of beneficial interests, as is
the case with debt securities held for the account of customers registered in
"street name." But payments will be the responsibility of the participants and
not of DTC, the trustee or us.
So long as DTC or its nominee is the registered owner of a global security,
DTC or that nominee, as the case may be, will be considered the sole owner or
holder of the debt securities represented by that global security for all
purposes under the applicable indenture. Except as set forth in the next
paragraph, owners of beneficial interests in a global security will not be
entitled to have the debt securities represented by that global security
registered in their names, will not receive or be entitled to receive physical
delivery of the debt securities in definitive form and will not be considered
the owners or holders of the debt securities under the applicable indenture.
(Section 2.16 of the senior indenture and Section 3.08 of the subordinated
indenture)
We will issue debt securities of any series of senior or subordinated debt
then represented by global securities in definitive form in exchange for those
global securities if:
. DTC notifies us that it is unwilling or unable to continue as depositary or
if DTC ceases to be a clearing agency registered under applicable law and a
successor depositary is not appointed by us within 90 days; or
. we determine not to require all of the debt securities of a series to be
represented by a global security; or
. in the case of senior debt securities, an event of default under the senior
indenture has occurred and is continuing and the registrar has received a
request from DTC to issue securities in definitive form.
(Section 2.16 of the senior indenture and section 3.05 of the subordinated
indenture)
If we issue debt securities in definitive form in exchange for a global
security, an owner of a beneficial interest in the global security will be
entitled to have debt securities equal in principal amount to the beneficial
interest registered in its name and will be entitled to physical delivery of
those debt securities in definitive form. Unless otherwise described in the
applicable prospectus supplement, debt securities issued in definitive form
will be issued in denominations of $1,000 and any multiple of $1,000 in excess
thereof and will be issued in registered form only, without coupons.
Description of Debt Warrants
We may issue, separately or together with other securities, debt warrants to
purchase debt securities. We will issue the debt warrants, if any, under debt
warrant agreements to be entered into between us and a bank or trust company,
as debt warrant agent, which will be specified in the applicable prospectus
supplement. We have summarized selected provisions of the debt warrant
agreements below. This is a summary and is not complete. It does not describe
certain exceptions and qualifications contained in the debt warrant agreements
or the certificates representing the debt warrants. If you would like more
information on the provisions of the debt warrant agreements, you should review
the form of debt warrant agreement, including the debt warrant certificate,
which we have incorporated by reference as an exhibit to the registration
statement of which this prospectus is a part.
General
A supplement to this prospectus will describe specific terms relating to the
debt warrants being offered. These terms will include some or all of the
following:
. the title, total principal amount and authorized denominations of the series
of debt securities purchasable upon exercise of the debt warrants;
. the manner in which debt warrants may be exercised;
14
<PAGE>
. the title and terms of any debt securities with which the debt warrants are
issued and the number of debt warrants issued with each debt security;
. the date, if any, on or after which the debt warrants may be transferred
separately from the related debt security;
. the principal amount of debt securities purchasable upon exercise of each
debt warrant and the exercise price;
. the date on which the right to exercise the debt warrants commences and the
expiration date;
. whether we will issue the debt warrant certificates in registered or bearer
form; and
. any other terms of the debt warrants.
Debt warrants may be exercisable for debt securities bearing no interest or
interest at a rate which, at the time of issuance, is below the prevailing
market rate. Special United States federal income tax considerations applicable
to any of these discounted debt securities will be described in the applicable
prospectus supplement.
Prior to the exercise of their debt warrants, holders of debt warrants will
not have any of the rights of holders of the debt securities purchasable upon
such exercise and will not be entitled to payments of principal of, and
principal and interest, if any, on those debt securities.
Exercise of Debt Warrants
Each debt warrant will entitle its holder to purchase for cash the principal
amount of debt securities at the exercise price set forth in the applicable
prospectus supplement. Commencing on the date the debt warrants become
exercisable, holders may exercise their debt warrants at any time up to the
close of business on the expiration date, after which time any unexercised debt
warrants will become void.
Upon receipt of the exercise price and the debt warrant certificate properly
completed and executed, we will forward to the holder, as soon as practicable,
the debt securities purchasable upon such exercise. If less than all the debt
warrants represented by a certificate are exercised, we will issue a new debt
warrant certificate for the remaining amount of debt warrants.
Description of Common Stock and Preferred Stock
We may issue, separately or together with or upon the conversion of or
exchange for other securities, shares of our common stock or preferred stock.
We have summarized certain rights of holders of our capital stock below. This
is a summary and is not complete. It does not describe certain exceptions and
qualifications contained in:
. our Amended and Restated Certificate of Incorporation, as amended;
. our Amended and Restated Bylaws; and
. in the case of preferred stock, our Amended Certificate of Designation
relating to such series of preferred stock.
If you would like more information on our common stock and preferred stock,
you should review the documents described above, each of which we have
incorporated by reference as an exhibit to the registration statement of which
this prospectus is a part.
Our authorized capital stock consists of:
. 300,000,000 shares of common stock, par value $.01 per share, of which as of
September 25, 2000 approximately 62 million shares were outstanding; and
. 10,000,000 shares of preferred stock, par value $.01 per share, of which as
of September 25, 2000 1,000,000 shares were designated as Series A Junior
Participating Preferred Stock, of which no shares were outstanding,
2,400,000 shares were designated as Series B Perpetual Preferred Stock, of
which no shares were outstanding, 2,000,000 shares were designated as Series
C Perpetual Convertible Preferred Stock, of which 925,458.8 shares were
outstanding; and 100,000 shares were designated as Series D Junior
Participating Preferred Stock, of which no shares were outstanding.
15
<PAGE>
Common Stock
General
Holders of our common stock are entitled to receive dividends on their
shares when, as and if declared by our board of directors out of funds legally
available for distribution. In the event we liquidate, dissolve or wind up our
affairs, holders of common stock are also entitled to receive ratably all of
our assets remaining after satisfying the preferences of our creditors and the
holders of any outstanding preferred stock.
Each share of our common stock entitles its holder to one vote in the
election of directors and any other matter submitted to a vote of stockholders.
Voting rights are not cumulative, with the result that holders of more than 50%
of the shares of common stock are entitled to elect all of our directors
elected by the common stockholders. Holders of common stock, solely by virtue
of their holdings, do not have preemptive rights to subscribe for or purchase
any shares of our capital stock which we may issue in the future.
All of our outstanding shares of common stock have been fully paid and are
nonassessable.
Preferred Stock
General
Our charter authorizes our board of directors to classify and issue from
time to time any unissued shares of preferred stock and to reclassify any
previously classified but unissued shares of any series of preferred stock. The
applicable prospectus supplement will describe the terms of a particular series
of preferred stock as set forth in the Certificate of Designation establishing
such series. These terms may include some or all of the following:
. title and stated value of the series;
. whether and in what circumstances the holder is entitled to receive
dividends and other distributions;
. whether (and if so, when) the series can be redeemed by us or the holder or
converted by the holder; and
. voting and other rights, if any.
Holders of preferred stock, solely by virtue of their holdings, do not have
preemptive rights to subscribe for or purchase any shares of our capital stock
which we may issue in the future.
Liquidation Preference
Unless otherwise described in the applicable prospectus supplement, in the
event we liquidate, dissolve or wind up our affairs, the holders of any series
of preferred stock will have preference over the holders of common stock and
any other capital stock ranking junior to such series for payment out of our
assets in the amount specified in the applicable Certificate of Designation. A
sale of all or substantially all of our assets or a consolidation or merger
with one or more corporations will not be deemed a liquidation, dissolution or
winding up for this purpose.
Ranking
Unless otherwise described in the applicable prospectus supplement, any
series of preferred stock we issue using this prospectus will rank junior in
right of payment to our Series C Perpetual Convertible Preferred Stock.
Series C Perpetual Convertible Preferred Stock
We have summarized certain terms of our Series C Perpetual Convertible
Preferred Stock below. This is a summary and is not complete. It does not
describe certain exceptions and qualifications contained in the Amended
Certificate of Designation relating to the Series C Preferred Stock which we
have incorporated by reference as an exhibit to the registration statement of
which this prospectus is a part.
As of September 25, 2000, 925,458.8 shares of Series C Preferred Stock were
outstanding. Additional shares are issued every quarter as a result of the pay-
in-kind dividend payable on the Series C Preferred Stock.
Certain provisions of the Series C Preferred Stock may be deemed to have an
anti-takeover effect. Within five days of the occurrence of a change of control
(as defined in the Amended Certificate of Designation), we may make an offer to
purchase all of the outstanding Series C Preferred Stock for 101% of the Series
C Preferential Payment
16
<PAGE>
(as defined in the Amended Certificate of Designation). If we do not make such
an offer:
. each holder of Series C Preferred Stock will receive additional shares of
Series C Preferred Stock so that the total number of shares he or she holds
equals the Series C Preferential Payment divided by $372.50;
. the pay-in-kind dividends will become payable in cash;
. the annual dividend rate will increase to 11 1/2%; and
. we will become subject to additional covenants restricting our indebtedness.
Furthermore, if we refrain from making such an offer and subsequently violate
any of the covenants imposed pursuant to the last bullet above, the dividend
rate will increase by an additional 2% to 13 1/2%.
For so long as the initial purchasers of the Series C Preferred Stock or
their affiliates own at least 25% of the originally issued Series C Preferred
Stock, or any common stock issued upon conversion thereof, the holders of a
majority of the outstanding shares of Series C Preferred Stock will be entitled
to elect four of eleven directors of the Board. In addition, with respect to a
vote relating to a change of control, liquidation, dissolution or winding up or
certain other matters which could result in the acceleration of dividends on
the Series C Preferred Stock, holders will be entitled to the number of votes
that could be cast by virtue of the shares he or she currently owns, as well as
the shares of Series C Preferred Stock he or she would receive as accelerated
dividends as a result of such event. The Series C Preferred Stock cannot be
redeemed at our option prior to January 1, 2002 and, thereafter, only if
certain conditions are satisfied.
Description of Depositary Shares
We may, at our option, elect to have shares of preferred stock be
represented by depositary shares. The shares of any series of preferred stock
underlying the depositary shares will be deposited under a separate deposit
agreement to be entered into between us and a bank or trust company, as
preferred stock depositary, as set forth in the applicable prospectus
supplement. We have summarized selected provisions of the depositary agreement
below. This is a summary and is not complete. It does not describe certain
exceptions and qualifications contained in the deposit agreement or the
depositary receipts. If you would like more information on the provisions of
the deposit agreement, you should review the form of deposit agreement,
including the depositary receipt, as well as the Certificate of Designation
describing the applicable series of preferred stock, each of which we have
incorporated by reference as an exhibit to the registration statement of which
this prospectus is a part.
General
Subject to the terms of the deposit agreement, each owner of a depositary
share will be entitled, proportionately, to all the rights, preferences and
privileges of the preferred stock represented by the depositary share,
including dividend, voting, redemption, conversion, exchange and liquidation
rights.
The depositary shares will be evidenced by depositary receipts issued in
accordance with the deposit agreement, each of which will represent the
fractional interest in the number of shares of a particular series of the
preferred stock described in the applicable prospectus supplement.
Dividends and Other Distributions
The preferred stock depositary will distribute all cash dividends or other
cash distributions with respect to the series of preferred stock represented by
the depositary shares to the record holders of depositary receipts in
proportion, to the extent possible, to the number of depositary shares owned by
the holders. The depositary, however, will distribute only the amount that can
be distributed without attributing to any depositary share a fraction of one
cent, and any undistributed balance will be added to and treated as part of the
next sum received by the depositary for distribution to record holders of
depositary receipts then outstanding.
If a distribution of property other than cash on the preferred stock occurs,
the preferred stock
17
<PAGE>
depositary will distribute the property to the record holders of depositary
receipts in proportion, to the extent possible, to the number of depositary
shares owned by the holders, unless the preferred stock depositary determines,
after consultation with us, that it is not feasible to make the distribution,
in which case the preferred stock depositary may, with our approval, adopt a
method it deems equitable and practicable for the purpose of effecting the
distribution, including a public or private sale of the property, and
distribution of the net proceeds from the sale to the holders.
The amount distributed to record holders of depositary receipts in any of
the cases described in this section will be reduced by any amount that we or
the preferred stock depositary are required to withhold on account of taxes.
Conversion and Exchange
If any series of preferred stock underlying the depositary shares is subject
to provisions relating to its conversion or exchange, as set forth in the
applicable prospectus supplement relating to that series, each record holder of
depositary receipts will have the right or obligation to convert or exchange
the depositary shares represented by the depositary receipts under their terms.
Redemption of Depositary Shares
If any series of preferred stock underlying the depositary shares is subject
to redemption, the depositary shares will be redeemed from the proceeds
received by the preferred stock depositary resulting from the redemption, in
whole or in part, of the preferred stock held by the preferred stock
depositary. Whenever we redeem preferred stock from the preferred stock
depositary, the preferred stock depositary will redeem as of the same
redemption date a proportionate number of depositary shares representing the
shares of preferred stock that were redeemed. If less than all the depositary
shares are to be redeemed, the depositary shares to be redeemed will be
selected by lot or on a proportionate basis as we may determine.
After the date fixed for redemption, the depositary shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the depositary shares will cease, except the right to receive the
redemption price upon redemption. Any funds that we deposit with the preferred
stock depositary relating to depositary shares which are not redeemed by the
holders of the depositary shares will be returned to us after a period of two
years from the date the funds are deposited by us.
Voting
Upon receipt of notice of any meeting at which the holders of any shares of
preferred stock underlying the depositary shares are entitled to vote, the
preferred stock depositary will mail the information contained in the notice to
the record holders of the depositary receipts. Each record holder of the
depositary receipts on the record date, which will be the same date as the
record date for the preferred stock, will be entitled to instruct the preferred
stock depositary as to the exercise of the voting rights pertaining to the
number of shares of preferred stock underlying the holder's depositary shares.
The preferred stock depositary will endeavor, to the extent practicable, to
vote the number of shares of preferred stock underlying the depositary shares
in accordance with the holder's instructions, and we will take all reasonable
action that is deemed necessary by the preferred stock depositary to enable the
preferred stock depositary to do so. Unless the preferred stock depositary
receives specific written instructions from holders of depositary receipts, it
will abstain from voting any of the preferred stock.
Record Date
Subject to the provisions of the deposit agreement, the preferred stock
depositary will fix a record date, which will be the same as the record date
for the preferred stock, for the determination of the holders of depositary
receipts that are entitled to receive a distribution, exercise voting rights or
receive a notice whenever:
. any cash dividend or other cash distribution becomes payable;
. any distribution other than cash is to be made;
. any rights, preferences or privileges will be offered relating to the
preferred stock;
. the preferred stock depositary receives notice of any meeting at which
holders of preferred stock
18
<PAGE>
are entitled to vote or of which holders of preferred stock are entitled to
notice; or
. the preferred stock depositary receives notice of the mandatory conversion
of, or any election on our part to call for redemption of, any preferred
stock.
Withdrawal of Preferred Stock
Upon surrender of depositary receipts at the principal office of the
preferred stock depositary, upon payment of any unpaid amount due the preferred
stock depositary, and subject to the terms of the deposit agreement, the owner
of the depositary shares evidenced by the depositary receipts is entitled to
delivery of the number of whole shares of preferred stock and all money and
other property, if any, represented by the depositary shares. Partial shares of
preferred stock will not be issued. If the depositary receipts delivered by the
holder evidence a number of depositary shares in excess of the number of
depositary shares representing the number of whole shares of preferred stock to
be withdrawn, the preferred stock depositary will deliver to the holder at the
same time a new depositary receipt evidencing the excess number of depositary
shares. Holders of shares of preferred stock that are withdrawn will not be
entitled to deposit those shares under the deposit agreement or to receive
depositary receipts.
Amendment and Termination of the Deposit Agreement
The deposit agreement will provide that the form of depositary receipt and
any provision of the deposit agreement may at any time be amended by agreement
between us and the preferred stock depositary. But any amendment which imposes
or increases any fees, taxes or other charges payable by the holders of
depositary receipts, other than taxes and other governmental charges, fees and
other expenses payable by the holders as stated under "Charges of Preferred
Stock Depositary," or which otherwise prejudices any substantial existing right
of holders of depositary receipts, will not take effect as to outstanding
depositary receipts until the expiration of 90 days after notice of the
amendment has been mailed to the record holders of outstanding depositary
receipts.
Whenever directed by us to do so, the preferred stock depositary will
terminate the deposit agreement by mailing notice of the termination to the
record holders of all depositary receipts then outstanding at least 30 days
before the date fixed in the notice for the termination. The preferred stock
depositary may likewise terminate the deposit agreement if 45 days have expired
after the preferred stock depositary has delivered to us a written notice of
its election to resign and a successor depositary has not been appointed and
accepted its appointment. If any depositary receipts remain outstanding after
the date of termination, the preferred stock depositary will discontinue the
transfer of depositary receipts, will suspend the distribution of dividends to
the holders of depositary receipts, and will not give any further notices,
other than notice of the termination, or perform any further acts under the
deposit agreement except as provided below and except that the preferred stock
depositary will continue to collect dividends and any other distributions on
the preferred stock and deliver the preferred stock together with the dividends
and distributions and the net proceeds of any sales of rights, preferences,
privileges or other property, without liability for any interest, in exchange
for surrendered depositary receipts. At any time after the expiration of two
years from the date of termination, the preferred stock depositary may sell the
preferred stock then held by it at public or private sales, at any place or
places and upon terms as it deems proper, and may hold the net proceeds of any
sale, together with any money and other property then held by it, without
liability for any interest, for the benefit, on a proportionate basis, of the
holders of depositary receipts which have not been surrendered.
Charges of Preferred Stock Depositary
We will pay all charges of the preferred stock depositary including charges
in connection with:
. the initial deposit of the preferred stock;
. the initial issuance of the depositary receipts;
. the distribution of information to the holders of depositary receipts
regarding matters on which holders of preferred stock are entitled to vote;
. withdrawals of the preferred stock by the holders of depositary receipts; or
19
<PAGE>
. redemption or conversion of the preferred stock;
except for taxes, including transfer taxes, if any, and other governmental
charges and the other charges that are expressly provided in the deposit
agreement to be at the expense of holders of depositary receipts or persons
depositing preferred stock.
Duties of Preferred Stock Depositary
The preferred stock depositary will make available for inspection by holders
of depositary receipts, at its corporate office and its office in New York
City, all reports and communications from us which are delivered to the
preferred stock depositary as the holder of preferred stock. Neither we nor the
preferred stock depositary will be liable if it is prevented or delayed by law
or any circumstance beyond its control in performing its obligations under the
deposit agreement. The obligations of the preferred stock depositary under the
deposit agreement are limited to performing its duties without negligence or
bad faith. Our obligations under the deposit agreement are limited to
performing our duties in good faith. Neither we nor the preferred stock
depositary are obligated to prosecute or defend any legal proceeding with
respect to any depositary shares or preferred stock unless satisfactory
indemnity is furnished. We and the preferred stock depositary are entitled to
rely upon advice of or information from counsel, accountants or other persons
believed to be competent and on documents believed to be genuine.
The preferred stock depositary may resign at any time or be removed by us,
effective upon the acceptance by its successor of its appointment; provided,
that if a successor preferred stock depositary has not been appointed or
accepted the appointment within 45 days after the preferred stock depositary
has delivered a notice of election to resign to us, the preferred stock
depositary may terminate the deposit agreement.
Description of Common Stock Warrants
We may issue, separately or together with other securities, common stock
warrants to purchase shares of our common stock. We will issue the common stock
warrants, if any, under stock warrant agreements to be entered into between us
and a bank or trust company, as stock warrant agent, as set forth in the
applicable prospectus supplement. We have summarized selected provisions of the
stock warrant agreements below. This is a summary and is not complete. It does
not describe certain exceptions and qualifications contained in the stock
warrant agreements or the certificates representing the common stock warrants.
If you would like more information on the provisions of the stock warrant
agreements, you should review the form of stock warrant agreement, including
the stock warrant certificate, which we have incorporated by reference as an
exhibit to the registration statement of which this prospectus is a part.
General
A supplement to this prospectus will describe specific terms relating to the
common stock warrants being offered. These terms will include some or all of
the following:
. the manner in which common stock warrants may be exercised;
. the number of shares of common stock purchasable upon exercise of each
common stock warrant and the exercise price;
. the date on which the right to exercise the common stock warrants commences
and the expiration date;
. whether (and if so, when) we can call the common stock warrants for
redemption; and
. any other terms of the common stock warrants.
Prior to the exercise of their common stock warrants, holders will not have
any of the rights of holders of the common stock purchasable upon such exercise
and will not be entitled to dividend payments on those shares of common stock.
Exercise of Stock Warrants
Each common stock warrant will entitle its holder to purchase for cash the
number of shares of common stock at the exercise price set forth in the
applicable prospectus supplement. Commencing on the date the common stock
warrants become exercisable, holders may exercise their common stock warrants
at any time up to the close of
20
<PAGE>
business on the expiration date, after which time any unexercised common stock
warrants will become void.
Upon receipt of the exercise price and the stock warrant certificate
properly completed and executed, we will forward to the holder, as soon as
practicable, a certificate representing the number of shares of common stock
purchasable upon such exercise. If less than all the common stock warrants
represented by a certificate are exercised, we will issue a new stock warrant
certificate for the remaining amount of common stock warrants.
Antidilution Provisions
Unless otherwise described in a prospectus supplement, the exercise price
payable and number of shares of common stock purchasable upon exercise of a
common stock warrant will be adjusted to prevent the holder's beneficial
interest in the common stock from being diluted in the event we:
. issue a stock dividend to holders of common stock or combine, subdivide or
reclassify our common stock;
. issue rights, warrants or options to all holders of common stock entitling
them to purchase shares of our common stock at a price per share less than
the current market price per share of common stock; or
. distribute to holders of common stock any of our assets or evidences of our
indebtedness which are not payable out of our capital surplus.
Description of Currency Warrants
We may issue, separately or together with debt securities or debt warrants,
currency warrants entitling the holder to receive from us the cash value in U.
S. dollars of the right to purchase (currency call warrants) or sell (currency
put warrants) a specified amount of a designated foreign currency. We will
issue the currency warrants, if any, under currency warrant agreements to be
entered into between us and a bank or trust company, as currency warrant agent,
as set forth in the applicable prospectus supplement. We have summarized
selected provisions of the currency warrant agreements below. This is a summary
and is not complete. It does not describe certain exceptions and qualifications
contained in the currency warrant agreements or the certificates representing
the currency warrants. If you would like more information on the provisions of
the currency warrant agreements, you should review the form of currency warrant
agreement, including the global warrant certificates, which we have
incorporated by reference as an exhibit to the registration statement of which
this prospectus is a part.
General
A supplement to this prospectus will describe specific terms relating to the
currency warrants being offered. These terms will include some or all of the
following:
. whether the currency warrants will be currency put warrants or currency call
warrants, or both;
. the formula for determining the cash value in U. S. dollars, if any, of each
currency warrant;
. the manner in which currency warrants may be exercised and the
circumstances, if any, in which such exercise will be deemed automatic;
. the minimum number, if any, of currency warrants which must be exercised at
any one time;
. the date on which the right to exercise the currency warrants commences and
the expiration date; and
. any other terms of the currency warrants.
The spot exchange rate of the designated foreign currency, upon exercise, as
compared to the U. S. dollar, will determine whether the currency warrants have
a cash value (cash settlement value) on any given day prior to their
expiration.
Form of Currency Warrants
Unless otherwise described in a prospectus supplement, all currency warrants
will be issued in the form of one or more fully registered global certificates
that will be deposited with DTC, New York, New York or its nominee. This means
that we will not issue certificates to each holder. Each global certificate
will be issued to DTC, which will keep a computerized record of its
participants (for example,
21
<PAGE>
your broker) whose clients have purchased currency warrants. The participant
will then keep a record of its clients who purchased the currency warrants.
Accordingly, transfers of ownership of any currency warrant may only be
effected through a selling holder's broker. For more information on the
procedures of DTC, see "Description of Debt Securities--Global Debt Securities"
above.
Exercise of Currency Warrants
Each currency warrant will entitle its holder to receive the cash settlement
value on the applicable exercise date. Unless otherwise described in the
applicable prospectus supplement, holders may exercise their currency warrants
at any time up to 3:00 p.m., New York City time, on the third business day
preceding the expiration date, after which time all currency warrants will be
deemed automatically exercised on the expiration date.
Plan of Distribution
We may sell securities to underwriters or dealers, through agents, directly
to purchasers or through a combination of these methods. Under certain
circumstances, we may also repurchase securities (directly or through dealers)
and reoffer them to the public in the same manner.
If stated in the applicable prospectus supplement, we may authorize
underwriters, dealers or agents to solicit offers by certain institutions to
purchase debt securities pursuant to delayed delivery contracts providing for
payment and delivery on a future date.
By Underwriters
If underwriters are used in the sale, the securities will be acquired by the
underwriters for their own account. The underwriters may resell the securities
in one or more transactions, including negotiated transactions, at a fixed
public offering price, which may be changed, or at varying prices determined at
the time of sale. The obligations of the underwriters to purchase the
securities will be subject to certain conditions. Any initial public offering
price and any discounts or concessions allowed or re-allowed or paid to dealers
may be changed from time to time.
By Agents
We may designate dealers, acting as our agents, to offer and sell securities
upon certain terms and conditions. Unless otherwise indicated in the prospectus
supplement, any agent we designate will act on a best efforts basis for the
period of its appointment.
Direct Sales
We may sell securities directly to the public, without the use of
underwriters, dealers or agents.
General Information
Underwriters, dealers and agents that participate in the distribution of the
securities may be underwriters as defined in the Securities Act of 1933, and
any discounts or commissions received by them from us and any profit on the
resale of the offered securities by them may be treated as underwriting
discounts and commissions under the Securities Act. Any underwriters or agents
will be identified and their compensation from us will be described in a
supplement to this prospectus.
We may have agreements with the underwriters, dealers and agents to
indemnify them against certain civil liabilities, including liabilities under
the Securities Act, or to contribute with respect to payments which the
underwriters, dealers or agents may be required to make.
Underwriters, dealers and agents may engage in transactions with, or perform
services for, us or our subsidiaries in the ordinary course of their
businesses.
22
<PAGE>
Legal Matters
Sidley & Austin, Chicago, Illinois will render an opinion for us as to the
validity of the offered securities.
Experts
Our consolidated financial statements as of December 31, 1999 and 1998 and
for each of the years in the three-year period ended December 31, 1999 have
been incorporated by reference herein and in the registration statement in
reliance upon the report of KPMG LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as
experts in accounting and auditing.
23
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses in connection with the issuance and distribution of the
securities, other than underwriting discounts and agency fees or commissions,
are set forth in the following table. All amounts except the Securities and
Exchange Commission registration fee are estimated.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee.............. $ 66,000
The New York Stock Exchange Fee.................................. 50,000
Printing and engraving expenses.................................. 100,000
Accountants' fees and expenses................................... 75,000
Legal fees and expenses.......................................... 175,000
Fees and expenses of trustee..................................... 40,000
Rating agency fees............................................... 125,000
Blue Sky fees and expenses....................................... 15,000
Miscellaneous.................................................... 4,000
--------
Total.......................................................... $650,000
========
</TABLE>
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law ("DGCL") empowers a
Delaware corporation to indemnify any persons who are, or are threatened to be
made, parties to any threatened, pending or completed legal action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of such corporation), by reason of the fact
that such person was an officer or director of such corporation, or is or was
serving at the request of such corporation as a director, officer, employee or
agent of another corporation or enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided that such officer or director acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests, and, for criminal proceedings, had no reasonable
cause to believe his conduct was illegal. A Delaware corporation may indemnify
officers and directors in an action by or in the right of the corporation under
the same conditions, except that no indemnification is permitted without
judicial approval if the officer or director is adjudged to be liable to the
corporation in the performance of his duty. Where an officer or director is
successful on the merits or otherwise in the defense of any action referred to
above, the corporation must indemnify him against the expenses which such
officer or director actually and reasonably incurred.
In accordance with the DGCL, the Registrant's Amended and Restated
Certificate of Incorporation, as amended (the "Certificate"), contains a
provision to limit the personal liability of the directors of the Company for
violations of their fiduciary duty. This provision eliminates each director's
liability to the Registrant or its stockholders for monetary damages except to
the extent provided by the DGCL:
. for any breach of the director's duty of loyalty to the Registrant or
its stockholders;
. for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
. under section 174 of the DGCL providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or
redemptions; or
. for any transaction from which a director derived an improper benefit.
The effect of this provision is to eliminate the personal liability of
directors for monetary damages for actions involving a breach of their
fiduciary duty of care, including any such actions involving gross
negligence.
II-1
<PAGE>
The Registrant's Certificate and Amended and Restated Bylaws provide for
indemnification of the Registrant's officers and directors to the fullest
extent permitted by applicable law. In addition, the Registrant maintains
insurance policies which provide coverage for its officers and directors in
certain situations where the Registrant cannot directly indemnify such officers
or directors.
Item 16. Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
1.1* Form of Underwriting Agreement--Debt Securities.
1.2* Form of Underwriting Agreement--Equity Securities.
1.3* Form of Distribution Agreement.
3.1 Amended and Restated Certificate of Incorporation of the Company
is incorporated herein by reference to Exhibit 3.a to the
Registrant's Registration Statement on Form S-1 (File No. 333-
10831).
3.2 Certificate of Amendment to the Amended and Restated Certificate
of Incorporation is incorporated herein by reference to Exhibit
3.2 to the Registrant's Registration Statement on Form S-3 (File
No. 333-82007).
3.3 Certificate of Amendment to the Amended and Restated Certificate
of Incorporation.
3.4 Amended and Restated Bylaws is incorporated herein by reference to
Exhibit 3.1 to the Registrant's Form 10-Q for the quarter ended
June 30, 1999.
3.5 Amended Certificate of Designation of Series C Convertible
Preferred Stock is incorporated herein by reference to Exhibit
3.3 to the Registrant's Registration Statement on Form S-3 (File
No. 333-82007).
4.1 Form of Senior Indenture by and between the Registrant and U.S.
Bank Trust National Association, as Trustee.
4.2 Form of Subordinated Indenture by and between the Registrant and
U.S. Bank Trust National Association, as Trustee.
4.3* Form of Senior Debt Security. The form or forms of such Senior
Debt Securities with respect to each particular offering will be
filed as an exhibit subsequently included or incorporated by
reference herein.
4.4* Form of Subordinated Debt Security. The form or forms of such
Subordinated Debt Securities with respect to each particular
offering will be filed as an exhibit subsequently included or
incorporated by reference herein.
4.5* Form of Debt Warrant Agreement.
4.6 Form of certificate for shares of Common Stock is incorporated
herein by reference to Exhibit 4.1 to the Registrant's
Registration Statement on Form S-3/A (File No. 333-60973).
4.7* Form of certificate for shares of Preferred Stock. Any Certificate
of Designation authorizing the creation of any series of
Preferred Stock and setting forth the rights, preferences and
designations thereof will be filed as an exhibit subsequently
included or incorporated by reference herein.
4.8* Form of Stock Warrant Agreement.
4.9* Form of Deposit Agreement.
4.10* Form of Currency Warrant Agreement.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
5.1 Opinion of Sidley & Austin.
12.1 Computation of ratios of earnings to fixed charges is incorporated
herein by reference to Exhibit 12(a) to the Registrant's Form 10-
K for the year ended December 31, 1999.
12.2 Computation of ratios of earnings to fixed charges and preferred
stock dividends is incorporated herein by reference to Exhibit
12(b) to the Registrant's Form 10-K for the year ended December
31, 1999.
12.3 Computation of ratios of earnings to fixed charges for the six
months ended June 30, 1999 and 2000.
12.4 Computation of ratios of earnings to fixed charges and preferred
stock dividends for the six months ended June 30, 1999 and 2000.
23.1 Consent of Sidley & Austin (included in Exhibit 5.1).
23.2 Consent of KPMG LLP.
24.1 Powers of Attorney.
25.1 Form T1- Statement of Eligibility of Trustee under the Senior
Indenture and the Subordinated Indenture.
</TABLE>
--------
* To be filed either by amendment or as an exhibit to an Exchange Act Report
and incorporated herein by reference.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) under the Act if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or
15(d) of the Securities
II-3
<PAGE>
Exchange Act of 1934 (the "Exchange Act") that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the Debt Securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Act, each
filing of the Registrant's annual report pursuant to Section 13(a) or 15(d)
of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act)
that is incorporated by reference in the Registration Statement shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Act may
be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions referred to in Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Metris Companies
Inc. certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Minnetonka, State of Minnesota, on this 29th day of
September, 2000.
Metris Companies Inc.
/s/ Ronald N. Zebeck
By: _________________________________
Ronald N. Zebeck
Chairman and Chief Executive
Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Ronald N. Zebeck Chairman and Chief September 29, 2000
______________________________________ Executive Officer
Ronald N. Zebeck
/s/ Benson K. Woo Chief Financial Officer September 29, 2000
______________________________________ (Principal Financial
Benson K. Woo Officer)
/s/ Jean C. Benson Executive Vice President, September 29, 2000
______________________________________ Controller (Principal
Jean C. Benson Accounting Officer)
* Director
______________________________________
Lee R. Anderson, Sr.
* Director
______________________________________
C. Hunter Boll
Director
______________________________________
John A. Cleary
* Director
______________________________________
Thomas M. Hagerty
* Director
______________________________________
David V. Harkins
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Director
______________________________________
Walter M. Hoff
* Director
______________________________________
Thomas H. Lee
* Director
______________________________________
Derek V. Smith
* Director
______________________________________
Edward B. Speno
* Director
______________________________________
Frank D. Trestman
/s/ Lorraine E. Waller September 29, 2000
*By: _________________________________
Lorraine E. Waller
Attorney-in-fact
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
1.1* Form of Underwriting Agreement--Debt Securities.
1.2* Form of Underwriting Agreement--Equity Securities.
1.3* Form of Distribution Agreement.
3.1 Amended and Restated Certificate of Incorporation of the Company
is incorporated herein by reference to Exhibit 3.a to the
Registrant's Registration Statement on Form S-1 (File No. 333-
10831).
3.2 Certificate of Amendment to the Amended and Restated Certificate
of Incorporation is incorporated herein by reference to Exhibit
3.2 to the Registrant's Registration Statement on Form S-3 (File
No. 333-82007).
3.3 Certificate of Amendment to the Amended and Restated Certificate
of Incorporation.
3.4 Amended and Restated Bylaws is incorporated herein by reference to
Exhibit 3.1 to the Registrant's Form 10-Q for the quarter ended
June 30, 1999.
3.5 Amended Certificate of Designation of Series C Convertible
Preferred Stock is incorporated herein by reference to Exhibit
3.3 to the Registrant's Registration Statement on Form S-3 (File
No. 333-82007).
4.1 Form of Senior Indenture by and between the Registrant and U.S.
Bank Trust National Association, as Trustee.
4.2 Form of Subordinated Indenture by and between the Registrant and
U.S. Bank Trust National Association, as Trustee.
4.3* Form of Senior Debt Security. The form or forms of such Senior
Debt Securities with respect to each particular offering will be
filed as an exhibit subsequently included or incorporated by
reference herein.
4.4* Form of Subordinated Debt Security. The form or forms of such
Subordinated Debt Securities with respect to each particular
offering will be filed as an exhibit subsequently included or
incorporated by reference herein.
4.5* Form of Debt Warrant Agreement.
4.6 Form of certificate for shares of Common Stock is incorporated
herein by reference to Exhibit 4.1 to the Registrant's
Registration Statement on Form S-3/A (File No. 333-60973).
4.7* Form of certificate for shares of Preferred Stock. Any Certificate
of Designation authorizing the creation of any series of
Preferred Stock and setting forth the rights, preferences and
designations thereof will be filed as an exhibit subsequently
included or incorporated by reference herein.
4.8* Form of Stock Warrant Agreement.
4.9* Form of Deposit Agreement.
4.10* Form of Currency Warrant Agreement.
5.1 Opinion of Sidley & Austin.
12.1 Computation of ratios of earnings to fixed charges is incorporated
herein by reference to Exhibit 12(a) to the Registrant's Form 10-
K for the year ended December 31, 1999.
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
12.2 Computation of ratios of earnings to fixed charges and preferred
stock dividends is incorporated herein by reference to Exhibit
12(b) to the Registrant's Form 10-K for the year ended December
31, 1999.
12.3 Computation of ratios of earnings to fixed charges for the six
months ended June 30, 1999 and 2000.
12.4 Computation of ratios of earnings to fixed charges and preferred
stock dividends for the six months ended June 30, 1999 and 2000.
23.1 Consent of Sidley & Austin (included in Exhibit 5.1).
23.2 Consent of KPMG LLP.
24.1 Powers of Attorney.
25.1 Form T1- Statement of Eligibility of Trustee under the Senior
Indenture and the Subordinated Indenture.
</TABLE>
--------
* To be filed either by amendment or as an exhibit to an Exchange Act Report
and incorporated herein by reference.
II-8
