As filed with the Securities and Exchange Commission on December 23, 1997
Registration No. 333-_____
_____________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________
FINGERHUT COMPANIES, INC.
(Exact name of registrant as specified in its charter)
Minnesota 41-1396490
(State of (I.R.S. Employer
Incorporation) Identification No.)
4400 Baker Road
Minnetonka,
Minnesota 55343
(Address of Principal Executive
Offices)
Fingerhut Companies, Inc. Performance Enhancement
Investment Plan
(Full Title of the Plan)
_______________
Michael P. Sherman, Esq.
Fingerhut Companies, Inc.
4400 Baker Road
Minnetonka, Minnesota 55343
(Name and address of agent for
service
(612) 932-3585
(Telephone Number of Agent for
Service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Amount to Maximum Maximum Amount
Securities to be be Offering Aggregate of
Registered Registered Price Per Offering Registration
Share (1) Price Fee
Common Stock, par
value $.01 per 90,994 $19.46875 $1,771,539 $522.60
share. . . . . . . shares(2)
(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, and based on the
average of the high and low sale prices as reported on the New York Stock
Exchange composite tape on December 18, 1997.
(2) This registration statement also covers such additional number of shares
as may be issuable or saleable by reason of the operation of the antidilution
provisions of the Fingerhut Companies, Inc. 1994 Employee Stock Purchase Plan.
____________________________________________________________________________
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated by reference in this registration
statement:
a. Annual Report on Form 10-K for the fiscal year ended December 27,
1996;
b. Quarterly Reports on Forms 10-Q for the quarters ended March 28,
1997, June 27, 1997 and September 26, 1997; and
c. The description of the Registrant's Common Stock, contained in the
Company's Registration Statement on Form 8-A (File No. 1-8668) filed
pursuant to Section 12 of the Securities Exchange Act of 1934 and declared
effective on April 25, 1990.
All documents filed by the Registrant (File No. 1-8668) pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, 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 in this registration statement and to be a part hereof from the
date of filing of such documents.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Michael P. Sherman, General Counsel of the Registrant, has given his
opinion on the legality of the securities being registered hereunder.
Mr. Sherman beneficially owns 27,500 shares of Common Stock of the
Registrant, including 27,000 shares that he has the right to acquire
through exercise of stock options.
Item 6. Indemnification of Directors and Officers.
Section 521 of the Minnesota Business Corporation Act (the "MBCA") (Minn.
Stat. 302A.521) generally provides that unless its articles or bylaws
provide otherwise, a corporation shall indemnify officers and directors made
or threatened to be made a party to a proceeding by reason of any such person's
present or former official capacity as a director or officer against
judgments, penalties, fines, including, without limitation, excise taxes
assessed against the person with respect to an employee benefit plan,
settlements and reasonable expenses, including attorneys' fees and
disbursements, incurred by the person in connection with the proceeding,
if, with respect to the acts or omissions of the person complained of in the
proceeding, the person: (1) has not been indemnified by another party for the
same amounts in connection with the proceeding with respect to the same acts or
omissions; (2) acted in good faith; (3) received no improper personal benefit
and the procedures for director conflicts of interest, if applicable, have been
satisfied; (4) in the case of a criminal proceeding, had no reasonable cause to
believe the conduct was unlawful; and (5) reasonably believed that the conduct
was in the best interests of the corporation.
The MBCA provides that unless a corporation's articles of incorporation or
bylaws provide otherwise, if a person is made or threatened to be made a
party to a proceeding, the person is entitled, upon written request to the
corporation, to payment or reimbursement by the corporation of reasonable
expenses, including attorneys' fees and disbursements, incurred by the
person in advance of the final disposition of the proceeding (a) upon receipt
by the corporation of a written affirmation by the person of a good faith
belief that the criteria for indemnification have been satisfied and a written
undertaking by the person to repay all amounts so paid or reimbursed by the
corporation, if it is ultimately determined that the criteria for
indemnification have not been satisfied, and (b) after a determination that
the facts then known to those making the determination would not preclude
indemnification.
The MBCA also permits a corporation to purchase and maintain insurance on
behalf of a person in that person's official capacity against any liability
asserted against and incurred by the person in or arising from that capacity,
whether or not the corporation would have been required to indemnify the
person against the liability.
The Bylaws of the Registrant provide for indemnification of its officers and
directors to the fullest extent permitted under the MBCA.
The Registrant currently maintains a policy insuring, subject to certain
exceptions, its directors and officers and the directors and officers of its
subsidiaries against liabilities which may be incurred by such persons acting
in such capacities.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits
Exhibit Number Description of Exhibit
5 Opinion of Michael P. Sherman, Esq.
10 Fingerhut Companies, Inc.
Performance Enhancement Incentive Plan.
24(a) Consent of KPMG Peat Marwick LLP.
24(b) Consent of Michael P. Sherman, Esq.
(included with Exhibit 5).
25 Powers of Attorney (included on Page 5).
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a) (3) of the
Securities Act of 1933;
(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) if, in the
aggregate, the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective 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) (1) (i) and (a) (1) (ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 of 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.
SIGNATURES
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 Minnetonka, State of Minnesota, on
December 22, 1997.
FINGERHUT COMPANIES, INC.
By /s/ Theodore Deikel
Theodore Deikel
(Chairman of the Board,
Chief Executive Officer and President)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Theodore Deikel and Michael P. Sherman
and each of them, his or her true and lawful attorneys-in-fact and agents
with full power and substitution and resubstitution, for such person 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 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 or
necessary to be done in and about the premises, as fully to all intents
and purposes and he or she 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 or her substitute or substitutes, 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/ Theodore Deikel Chairman of the Board, December 22, 1997
Theodore Deikel Chief Executive Officer
and President; and
Director (Principal
Executive Officer)
/s/ Gerald T. Knight Senior Vice President, December 22, 1997
Gerald T. Knight Chief Financial Officer
(Principal Financial Officer)
/s/ Thomas C. Vogt Corporate Controller December 19, 1997
Thomas C. Vogt (Principal Accounting
Officer)
/s/ Wendell S. Anderson Director December 18, 1997
Wendell R. Anderson
/s/ Edwin C. Gage Director December 22, 1997
Edwin C. Gage
/s/ Stanley S. Hubbard Director December 18, 1997
Stanley S. Hubbard
/s/ Kenneth A. Macke Director December 18, 1997
Kenneth A. Macke
/s/ Dudley C. Mecum Director December 18, 1997
Dudley C. Mecum
/s/ John M. Morrison Director December 18, 1997
John M. Morrison
/s/ Christina L. Shea Director December 19, 1997
Christina L. Shea
December 22, 1997
Fingerhut Companies, Inc.
4400 Baker Road
Minnetonka, Minnesota 55343
Re: Registration Statement on Form S-8
Gentlemen and Ladies:
As General Counsel of Fingerhut Companies, Inc. (the
"Company") and head of its Legal Department, I am delivering this
opinion in connection with the preparation of a Registration
Statement on Form S-8 (the "Registration Statement"), relating to
the registration of 90,994 shares of the Company's common stock,
$.01 par value per share (the "Common Stock"), issuable pursuant
to the Fingerhut Companies, Inc. Performance Enhancement
Investment Plan (the "Plan").
In that regard, I or attorneys on my staff have examined
originals or copies, certified or otherwise identified to our
satisfaction, of such documents, corporate records and other
instruments and certificates as we have deemed necessary for
purposes of this opinion, including the following:
(a) The Company's Articles of Incorporation, as amended
through the date hereof;
(b) The Company's Bylaws, as amended through the date
hereof;
(c) Certain corporate resolutions, including resolutions of
the Company's shareholders and/or Board of Directors
pertaining to the Plan;
(d) The Plan; and
(e) The Registration Statement as it is currently proposed
to be filed with the Securities and Exchange
Commission.
Based on the foregoing, I am of the opinion that:
1. The Company was duly incorporated under the laws of the
State of Minnesota and is now a validly organized and
existing corporation under the laws of that State.
2. The shares of Common Stock which are being registered
pursuant to the Registration Statement have been duly
authorized and, when issued pursuant to the terms of
the Plan, will be validly issued, fully paid and
nonassessable.
I hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Sincerely,
/s/Michael P. Sherman
Michael P. Sherman
General Counsel
Exhibit 24(a)
Consent of Independent Certified Public Accountants
The Board of Directors
Fingerhut Companies, Inc.
We consent to incorporation by reference to the registration
statement on Form S-8 of Fingerhut Companies, Inc. and
subsidiaries of our reports dated January 22, 1997 relating
to the consolidated statements of financial position of
Fingerhut Companies, Inc. as of December 27, 1996 and
December 29, 1995 and the related consolidated statements of
earnings, changes in stockholders' equity and cash flows and
the related financial statement schedule for each of the
years in the three-year period ended December 27, 1996,
which reports appear in or are incorporated by reference in
the December 27, 1996 annual report on Form 10-K of
Fingerhut Companies, Inc.
Minneapolis, Minnesota
December 22, 1997
FINGERHUT COMPANIES, INC.
PERFORMANCE ENHANCEMENT INVESTMENT PLAN
1. Purpose of Plan.
This Plan shall be known as the "FINGERHUT COMPANIES,
INC. PERFORMANCE ENHANCEMENT INVESTMENT PLAN" and is hereinafter
referred to as the "Plan." The purpose of the Plan is to aid in
maintaining and developing personnel capable of ensuring the
future success of Fingerhut Companies, Inc., a Minnesota
corporation (the "Company"), to offer such personnel additional
incentives to put forth maximum efforts for the success of the
business, and to afford them an opportunity to acquire a
proprietary interest in the Company through the purchase of stock
options as provided herein. Options granted under this Plan
shall be options which do not qualify as incentive stock options
within the meaning of Section 422 of the Internal Revenue Code of
1986 (the "Code").
2. Stock Subject to Plan.
Subject to the provisions of Section 15 hereof, the
stock to be subject to options under the Plan shall be the
Company's authorized common stock, par value $0.01 per share (the
"Common Stock"). Subject to adjustment as provided in Section 15
hereof, a maximum of 1,500,000 shares of Common Stock shall be
reserved for issuance upon exercise of options granted under the
Plan. If any options granted under the Plan expire, or for any
reason are terminated or unexercised, such options shall again be
available for grant hereunder during the term of the Plan.
3. Administration of Plan.
(a) The Plan shall be administered by the Compensation
Committee of the Board of Directors (the "Committee").
(b) The Committee shall have plenary authority in its
discretion, but subject to the express provisions of the
Plan: (i) to determine the purchase price to be paid for each
option and units of options, (ii) to determine the purchase price
of the shares of Common Stock covered by each option, (iii) to
determine the employees and others to whom and the time or times
at which such options shall be made available for purchase and
the number of shares to be subject thereto, (iv) to determine the
terms of exercise of each option, (v) to accelerate the time at
which all or any part of an option vests and may be exercised,
(vi) to amend or modify the terms of any option with the consent
of the optionee, (vii) to interpret the Plan, (viii) to
prescribe, amend and rescind rules and regulations relating to
the Plan, (ix) to determine the terms and provisions of each
option agreement under the Plan (which agreements need not be
identical), and (x) to make all other determinations necessary or
advisable for the administration of the Plan, subject to the
authority of the Board of Directors under Section 16 hereof to
amend or terminate the Plan. The Committee's determinations on
the foregoing matters, subject only to the delegation of
authority to the Committee by the Board of Directors of the
Company, shall be final and conclusive.
(c) The Committee may select one of its members as its
Chairman and shall hold its meetings at such times and places as
it may determine. A majority of its members shall constitute a
quorum. All determinations of the Committee shall be made by not
less than a majority of its members. Any decision or
determination reduced to writing and signed by all of the members
of the Committee shall be fully effective as if it had been made
by a majority vote at a meeting duly called and held. The sale
of an option by the Company to an optionee hereunder shall be
effective only if a written agreement shall have been duly
executed and delivered by and on behalf of the Company upon the
grant of such option, and the optionee elects to purchase such
option by executing such agreement and pays to the Company the
purchase price therefor in full in accordance with the terms of
the Plan. The Committee may appoint a Secretary and may make
such rules and regulations for the conduct of its business as it
shall deem advisable.
4. Eligibility.
Options may only be offered under this Plan to any full
or part-time employee (which term as used herein includes, but is
not limited to, officers and directors who are also employees) of
the Company and of its present and future subsidiary corporations
within the meaning of Section 424(f) of the Code (herein called
"subsidiaries"), and any consultants or independent contractors
to the Company or one of its subsidiaries. In determining the
persons to whom options shall be offered and the number of shares
of Common Stock covered by such options, the Committee may take
into account the nature of services rendered by the respective
employees or consultants, their present and potential
contributions to the success of the Company and such other
factors as the Committee in its discretion shall deem relevant.
A person who has been offered or has purchased options under this
Plan may be offered additional options under the Plan if the
Committee shall so determine. Nothing in the Plan or in any
agreement thereunder shall confer on any employee any right to
continue in the employ of the Company or any of its subsidiaries
or affect, in any way, the right of the Company or any of its
subsidiaries to terminate his or her employment at any time.
5. Purchase of Options.
The Committee may grant options under the Plan from
time to time prior to June 1, 1996. When the Committee elects to
grant options to an employee or consultant (the "offeree"), the
offeree shall have 30 days from the date of the offer (the "Offer
Date") to elect to purchase such options. The Committee may in
its discretion extend the time period within which the offeree
must pay the purchase price for such options to the Company. All
options granted under the Plan shall be offered in units
consisting of four options with the respective vesting periods
and exercise prices described in Section 6 below. An offeree may
elect to purchase less than all of the units of options offered,
but the offer to sell the units to the offeree shall lapse on the
31st day following the Offer Date as to any units that the
offeree has not elected to purchase. The units not purchased by
an offeree shall again be available for grant hereunder. The
purchase price for units shall be established by the Committee on
the Offer Date.
6. Exercise Price.
The exercise price for options comprising units sold
under the Plan shall be 110%, 120%, 130% and 140%, respectively,
of the fair market value of the Common Stock on the Offer Date.
For purposes of the preceding sentence and for all other
valuation purposes under the Plan, the "fair market value" of the
Common Stock shall be the last sale price of the Common Stock on
the trading day preceding the Offer Date, or as otherwise
reasonably determined by the Committee. If the Common Stock is
not traded on an established securities market, the Committee
shall make a good faith attempt to determine the fair market
value of the Common Stock, and such determination shall be final
and conclusive.
7. Vesting.
Subject to the authority of the Committee to accelerate the
vesting of options, 25% of all of the options within each unit
sold shall vest and become exercisable on the first anniversary
of the Offer Date, and thereafter, an additional 25% shall vest
and become exercisable on the second, third and fourth
anniversary dates, respectively.
8. Term.
Each option and all rights and obligations thereunder
shall expire on the seventh anniversary of the Offer Date.
9. Exercise of Option or Award.
(a) The Committee shall have full and complete
authority to provide for the acceleration of vesting and the
exercise of options upon the occurrence of such events
(including, without limitation, changes of control of the
Company, changes of circumstances relating to the Plan or the
participant, changes in securities or financial markets, or
otherwise) and at such times during the term of the options as
the Committee may determine to be necessary or appropriate under
the circumstances.
(b) The exercise of any option sold hereunder shall
only be effective at such time as the shares of Common Stock
covered by such option will not violate any state or federal
securities or other laws.
(c) An optionee electing to exercise an option shall
give written notice to the Company of such election and of the
number of shares of Common Stock subject to such election. The
full purchase price of such shares shall be tendered with such
notice of exercise. Payment shall be made to the Company in cash
(including bank check, certified check, personal check, or money
order), or, at the discretion of the Committee, (i) by delivering
certificates for Common Stock already owned by the optionee
having a fair market value as of the date of exercise at least
equal to the full purchase price of the shares, or (ii) by
delivering the optionee's promissory note, which shall provide
for interest at a rate not less than the minimum rate required to
avoid the imputation of income, original issue discount or a
below-market-rate loan pursuant to Sections 483, 1274 or 7872 of
the Internal Revenue Code or any successor provisions thereto, or
(iii) a combination of cash, the optionee's promissory note and
such shares. The fair market value of any such tendered shares
shall be determined as provided in Section 5 herein. The
optionee's promissory note shall be a full recourse liability of
the optionee and may, at the discretion of the Committee, be
secured by a pledge of the shares being purchased. Until such
person has been issued the shares of Common Stock following
exercise and payment of the exercise price, he or she shall not
possess any rights as a shareholder with respect to such shares.
10. Return of Purchase Price.
If any option expires unexercised, the offeree shall be
entitled to return of the purchase price paid therefor, but only
if the fair market value of the Common Stock (determined in
accordance with Section 5) on the date of expiration exceeds the
fair market value of the Common Stock on the Offer Date. If, on
the date of expiration of an option, the fair market value of the
Common Stock is less than that on the Offer Date, then the
optionee shall be entitled to the return of only that portion of
the purchase price applicable to such option as is equal to the
percentage obtained by dividing the fair market value of the
Common Stock on the date of expiration by the fair market value
on the Offer Date, after giving effect to such adjustments as the
Committee determines to be required to reflect payment of
dividends and other changes to the capital of the Company
occurring after the Offer Date.
11. Additional Restrictions.
The Committee shall have full and complete authority to
determine whether all or any part of the shares of Common Stock
acquired upon exercise of any of the options sold under the Plan
shall be subject to restrictions on transferability or any other
restrictions affecting in any manner the optionee's rights with
respect thereto, but any such restriction shall be contained in
the agreement relating to such options.
12. Non-Transferability.
No option granted under the Plan shall be transferable
by an optionee otherwise than by will or the laws of descent or
distribution. Except as otherwise provided in an option
agreement, during the lifetime of an optionee, the option shall
be exercisable only by such optionee.
13. Dilution or Other Adjustments.
If there shall be any change in the Common Stock
through merger, consolidation, reorganization, recapitalization,
dividend in the form of stock (of whatever amount), stock split
or other change in the corporate structure, appropriate
adjustments in the Plan and any outstanding options shall be made
by the Committee. In the event of any such changes, adjustments
shall include, as appropriate, changes in the aggregate number of
shares of Common Stock issuable upon exercise of the options, the
price per share of Common Stock covered by outstanding options,
the exercise price of options, and such other adjustments as may
be appropriate or required to prevent dilution or enlargement of
option rights.
14. Amendment or Discontinuance of Plan.
The Board of Directors may amend or discontinue the
Plan at any time; provided, however, that without shareholder
approval (except as provided in Section 15) no amendment of the
Plan shall (i) increase the maximum number of shares of Common
Stock reserved for issuance under the Plan or (ii) extend the
maximum term of options permitted under Section 8. No option
granted under the Plan may be altered or impaired without the
consent of the holder of the option.
15. Time of Offer.
Nothing contained in the Plan or in any resolution
adopted or to be adopted by the Board of Directors, the
Compensation Committee of the Board, or the shareholders of the
Company, and no action taken by the Committee or the Board of
Directors shall constitute the sale of an option hereunder, other
than the election by an offeree to purchase units of options
granted by the Committee hereunder and payment of the purchase
price therefor.
16. Effective Date and Termination of Plan.
(a) The Plan was approved by the Board of Directors on
March 12, 1993, and is subject to approval by the shareholders of
the Company within twelve (12) months thereafter.
(b) Unless the Plan shall have been discontinued as
provided in Section 16 hereof, the Plan shall terminate March 12,
2003. No option may be granted after such termination, but
termination of the Plan shall not, without the consent of the
optionee, alter or impair any rights or obligations under any
option theretofore granted.
