As filed with the Securities and Exchange Commission on June 19, 1998
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PROVIDIAN FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware 94-2933952
(State of incorporation) (I.R.S. Employer Identification No.)
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201 Mission Street
San Francisco, California 94105
(415) 543-0404
(Address and telephone number of Principal Executive Offices)
1997 Employee Stock Purchase Plan
(Full title of the plan)
--------------
Shailesh J. Mehta
Chief Executive Officer
Providian Financial Corporation
201 Mission Street
San Francisco, California 94105
(415) 543-0404
(Name, address, including zip code and telephone number,
including area code of agent for service)
--------------------
Copies to:
Ellen Richey, Esq.
Providian Financial Corporation
201 Mission Street
San Francisco, California 94105
CALCULATION OF REGISTRATION FEE
________________________________________________________________________________
________________________________________________________________________________
Title of Amount Proposed maximum Proposed Amount of
securities to be to be offering price maximum registration
registered registered per share(1) aggregate fee
offering
price (1)
________________________________________________________________________________
1997 Employee Stock 1,000,000 $69.0625 $69,062,500 $20,373.44
Purchase Plan shares
Common Stock
(par value $0.01)
________________________________________________________________________________
________________________________________________________________________________
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and (h)(1) based upon the average
of the high and the low prices of Registrant's Common Stock on
June 15, 1998, as reported on the New York Stock Exchange.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Registrant with the Securities and
Exchange Commission (the "SEC") under the Securities Exchange Act of 1934 as
amended (the "Exchange Act") are incorporated by reference into this
Registration Statement:
1. The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
2. The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998.
3. The Registrant's Current Report on Form 8-K dated February 13, 1998.
4. The description of the Registrant's common stock which is contained in a
registration statement on Form 10 filed under the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("DGCL") permits a
corporation to indemnify its directors, officers, employees and other agents in
terms sufficiently broad to permit indemnification (including reimbursement for
expenses) under certain circumstances for liabilities arising under the
Securities Act of 1933, as amended (the "Securities Act"). The Registrant's
Bylaws contain provisions covering indemnification of directors, officers and
other agents against certain liabilities and expenses incurred as a result of
proceedings involving such persons in their capacities as directors, officers,
employees or agents, including proceedings under the Securities Act or the
Exchange Act.
The Registrant's Certificate of Incorporation provides for the
indemnification of directors to the fullest extent not prohibited by the DGCL
and authorizes the indemnification by the Registrant of officers, employees and
other agents as set forth in the DGCL.
In addition, the Registrant has obtained directors' and officers' liability
insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
Exhibit
5.1 Opinion of General Counsel, Providian Financial Corporation
23.1 Consent of Ernst & Young LLP
23.1 Consent of General Counsel, Providian Financial Corporation. Reference
is made to Exhibit 5.1
24.1 Power of Attorney. Reference is made to the signature pages
99.1 1997 Employee Stock Purchase Plan (incorporated by reference to Exhibit
10.2 to the Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1997)
99.2 1997 Employee Stock Purchase Plan Offering
ITEM 9. UNDERTAKINGS
1. The undersigned Registrant hereby undertakes:
a. To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
i. To include any prospectus required by section 10(a)(3) of the
Securities Act;
ii. To reflect in the prospectus any facts or events arising
after the effective date of 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;
iii. To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the issuer pursuant to section 13 or section 15(d) of
the Exchange Act that are incorporated by reference in the Registration
Statement.
b. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
c. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Francisco, State of California, on
June 19, 1998.
PROVIDIAN FINANCIAL CORPORATION
By: /s/ Shailesh J. Mehta
__________________________________
Shailesh J. Mehta
Chairman of the Board, President and
Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ellen Richey, Clifford Shapiro and Ronald
Claveloux, and each or any one of them, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------- ------ -----
/s/ Shailesh J. Mehta
- --------------------- Chairman of the Board, June 19, 1998
Shailesh J. Mehta President and Chief Executive
Officer and Director (Principal
Executive Officer)
/s/ David J. Petrini
- -------------------- Senior Vice President and June 19, 1998
David J. Petrini Chief Financial Officer
(Principal Financial Officer)
/s/ Daniel Sanford
- ------------------ Vice President and Controller June 19, 1998
Daniel Sanford (Principal Accounting Officer)
/s/ John M. Cranor III
- ---------------------- Director June 19, 1998
John M. Cranor III
/s/ James V. Elliott
- -------------------- Director June 19, 1998
James V. Elliott
/s/ Lyle Everingham
- ------------------- Director June 19, 1998
Lyle Everingham
/s/ J. David Grissom
- -------------------- Director June 19, 1998
J. David Grissom
/s/ F. Warren McFarlan
- ---------------------- Director June 19, 1998
F. Warren McFarlan
/s/ Larry D. Thompson
- --------------------- Director June 19, 1998
Larry D. Thompson
Director
/s/ John L. Weinberg
- -------------------- Director June 19, 1998
John L. Weinberg
EXHIBIT INDEX
Exhibit
5.1 Opinion of General Counsel, Providian Financial Corporation
23.1 Consent of Ernst & Young LLP
23.1 Consent of General Counsel, Providian Financial Corporation. Reference
is made to Exhibit 5.1
24.1 Power of Attorney. Reference is made to the signature pages
99.1 1997 Employee Stock Purchase Plan (incorporated by reference to Exhibit
10.2 to the Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1997)
99.2 1997 Employee Stock Purchase Plan Offering
EXHIBIT 5.1
June 19, 1998
Securities and Exchange Commission
Division of Corporate Finance
Washington, D.C. 20549
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
I am General Counsel of Providian Financial Corporation, a Delaware
corporation (the "Company"). This opinion is being delivered to you in
connection with the registration under the Securities Act of 1933, as amended
(the "Act"), of the shares of the Company's Common Stock, par value $0.01 per
share (the "Common Stock"), issuable under the Providian Financial Corporation
1997 Employee Stock Purchase Plan (the "Plan"). I am a member of the Bar of the
State of California.
I am generally familiar with the properties and affairs of the Company
(including the Plan). I have also examined those records of the Company I deemed
necessary for the purpose of this opinion. On that basis, I am of the opinion
that the 1,000,000 shares of Common Stock of the Company, when issued pursuant
to the terms of the Plan, will be validly issued, fully paid and nonassessable
shares of the Company's Common Stock.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement on Form S-8 relating to the Plan.
Very truly yours,
/s/ Ellen Richey
Ellen Richey
General Counsel
EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1997 Employee Stock Purchase Plan of Providian Financial
Corporation of our report dated January 22, 1998, with respect to the
consolidated financial statements of Providian Financial Corporation
incorporated by reference in its Annual Report on Form 10-K for the year ended
December 31, 1997 filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
San Francisco, California
June 19, 1998
EXHIBIT 99.2
PROVIDIAN FINANCIAL CORPORATION
1997 EMPLOYEE STOCK PURCHASE PLAN OFFERING
Adopted by the Human Resources Committee on September 25, 1997
1. Grant; Offering Date.
(a) The Human Resources Committee (the "Committee") of the Board of
Directors (the "Board") of Providian Financial Corporation (the "Company"),
pursuant to the Company's 1997 Employee Stock Purchase Plan (the "Plan"), hereby
authorizes the grant of rights to purchase shares of the common stock of the
Company ("Common Stock") to all Eligible Employees (an "Offering"). The first
Offering shall begin on October 1, 1997 and end on June 30, 1998 (the "Initial
Offering"). Thereafter, an Offering shall begin on January 1, 1998 and every
July 1 and January 1 thereafter. Each Offering other than the Initial Offering
shall end on the date immediately preceding the one-year anniversary date of
such Offering (e.g., January 1, 1998 through December 31, 1998, July 1, 1998
through June 30, 1999). The first day of an Offering is that Offering's
"Offering Date," and the last day of an Offering shall be that Offering's
"Purchase Date."
(b) Prior to the commencement of any Offering, the Board or the
Committee may change any or all terms of such Offering and any subsequent
Offerings. The granting of rights pursuant to each Offering hereunder shall
occur on each respective Offering Date unless, prior to such date (a) the Board
or the Committee determines that such Offering shall not occur, or (b) no shares
remain available for issuance under the Plan in connection with the Offering.
2. Eligible Employees.
All employees of the Company, and all employees of Affiliates (as
defined in the Plan) of the Company which are designated by the Board and
incorporated in the United States, who have been employed by the Company or such
Affiliate for at least one (1) month shall be granted rights to purchase Common
Stock under each Offering on the Offering Date of such Offering, provided that
each such employee otherwise meets the employment requirements of subparagraph
5(a) of the Plan (an "Eligible Employee") on such Offering Date. Notwithstanding
the foregoing, the following employees shall not be Eligible Employees or be
granted rights under an Offering: (i) part-time or seasonal employees whose
customary employment is less than twenty (20) hours per week or five (5) months
per calendar year, (ii) 5% stockholders (including ownership through unexercised
options and all direct and indirect ownership by immediate family members,
brothers, sisters (including half blood) and lineal ancestors and descendants)
described in subparagraph 5(c) of the Plan and (iii) those employees of the
Company deemed "highly compensated employees" (as such term is defined in
Section 414(q) of the Internal Revenue Code of 1986, as amended (the "Code")),
who have been granted one or more stock options by either the Company or the
former parent of the Company.
3. Rights.
(a) Subject to the limitations contained herein and in the Plan, on
each Offering Date each Eligible Employee shall be granted the right to purchase
the number of shares of Common Stock purchasable with up to seven percent (7%)
of such employee's Earnings paid during the period of such Offering beginning
after such Eligible Employee first commences participation; provided, however,
that no employee may purchase Common Stock on a particular Purchase Date that
would result in more than fourteen percent (14%) of such employee's Earnings in
the period from the Offering Date to such Purchase Date having been applied to
purchase shares under all ongoing Offerings under the Plan and all other Company
plans intended to qualify as "employee stock purchase plans" under Section 423
of the Code. "Earnings" shall mean base salary or wages (including amounts
elected to be deferred by the employee, that would otherwise have been paid,
under any cash or deferred arrangement established by the Company), commissions,
overtime pay, bonuses, and other remuneration paid directly to the employee, but
does not include profit sharing, the cost of employee benefits paid for by the
Company, education or tuition reimbursements, imputed income arising under any
Company group insurance or benefit program, traveling expenses, business and
moving expense reimbursements, income received in connection with stock options,
contributions made by the Company under any employee benefit plan, and similar
items of compensation.
(b) Notwithstanding the foregoing, the maximum number of shares of
Common Stock an Eligible Employee may purchase on any Purchase Date in an
Offering shall be such number of shares as has a fair market value (determined
as of the Offering Date for such Offering) equal to (x) $25,000 multiplied by
the number of calendar years in which the right under such Offering has been
outstanding at any time, minus (y) the fair market value (determined as of the
relevant Offering Date with respect to such shares) of any other shares of
Common Stock which, for purposes of the limitation of Section 423(b)(8) of the
Code, are attributed to any of such calendar years in which the right is
outstanding. The amount in clause (y) of the previous sentence shall be
determined in accordance with regulations applicable under Section 423(b)(8) of
the Code based on (i) the number of shares previously purchased with respect to
such calendar years pursuant to such Offering or any other Offering under the
Plan, or pursuant to any other Company plans intended to qualify as "employee
stock purchase plans" under Section 423 of the Code, and (ii) the number of
shares subject to other rights outstanding on the Offering Date for such
Offering pursuant to the Plan or any other such Company plan.
(c) The maximum aggregate number of shares available to be purchased by
all Eligible Employees under each Offering shall be one hundred fifty thousand
(150,000). If the aggregate purchase of shares of Common Stock upon exercise of
rights granted under an Offering would exceed the maximum aggregate number of
shares available, the Board or the Committee shall make a pro rata allocation of
the shares available in a uniform and equitable manner.
4. Purchase Price.
The purchase price of the Common Stock under the Offering shall be the
lesser of (i) eighty-five percent (85%) of the fair market value of the Common
Stock on the Offering Date or (ii) eighty-five percent (85%) of the fair market
value of the Common Stock on the Purchase Date, in each case rounded up to the
nearest whole cent per share.
5. Participation.
(a) Except as otherwise provided in this paragraph 5 or in the Plan, an
Eligible Employee may elect to participate in an Offering only at the beginning
of the Offering. An Eligible Employee shall become a participant in an Offering
by delivering an enrollment agreement authorizing payroll deductions. Such
deductions must be in whole percentages of Earnings, with a minimum percentage
of one percent (1%) and a maximum percentage of seven percent (7%). A
participant may not make additional payments into his or her account. The
enrollment agreement shall be made on such form as the Company provides, and
must be delivered to the Company prior to the date participation is to be
effective, unless a later time for returning the enrollment agreement is set by
the Company for all Eligible Employees with respect to a given participation
date.
(b) A participant may decrease, but only to zero percent (0%), his or
her participation level during the course of an Offering by delivering notice to
the Company in such form as the Company prescribes; provided that no reduction
will be permitted if such notice is received by the Company within the fifteen
(15)-day period immediately preceding a Purchase Date. In addition, a
participant may withdraw from an Offering and receive his or her accumulated
payroll deductions from the Offering, without interest, at any time prior to the
end of the Offering (excluding only each fifteen (15)-day period immediately
preceding a Purchase Date) by delivering a withdrawal notice to the Company in
such form as the Company provides. A participant who has withdrawn from an
Offering shall not again participate in such Offering, but may participate in
subsequent Offerings under the Plan in accordance with the terms thereof.
6. Purchases.
Subject to the limitations contained herein, on each Purchase Date,
each participant's accumulated payroll deductions (without any increase for
interest) shall be applied to the purchase of shares of Common Stock, up to the
maximum number of shares permitted under the Plan and the Offering.
7. Notices and Agreements.
Any notices or agreements provided for in an Offering or the Plan shall be
given in the form provided for by the Company, and, for notices in writing,
shall be deemed effectively given upon receipt or, in the case of notices and
agreements delivered by the Company, five (5) days after deposit in the United
States mail, postage prepaid.
8. Exercise Contingent on Stockholder Approval.
The rights granted under an Offering are subject to the approval of the
Plan by the stockholders of the Company as required for the Plan to obtain
treatment as a tax-qualified employee stock purchase plan under Section 423 of
the Code and to comply with the requirements of exemption from potential
liability under Section 16(b) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") set forth in Rule 16b-3 promulgated under the Exchange Act.
9. Offering Subject to Plan
Each Offering is subject to all the provisions of the Plan, and its
provisions are hereby made a part of the Offering, and is further subject to all
interpretations, amendments, rules and regulations which may from time to time
be promulgated and adopted pursuant to the Plan. In the event of any conflict
between the provisions of an Offering and those of the Plan (including
interpretations, amendments, rules and regulations which may from time to time
be promulgated and adopted pursuant to the Plan), the provisions of the Plan
shall control.
