As filed with the Securities and Exchange Commission on February 26, 1997
Registration Statement No. 333-
- --------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
DEAN WITTER, DISCOVER & CO.
(Exact name of registrant as specified in its charter)
Delaware 36-3145972
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
Two World Trade Center
New York, New York 10048
(212) 392-2222
(Address and telephone number of registrant's principal executive offices)
- --------------------------------------------------------------------------
Christine A. Edwards, Esq.
Executive Vice President and General Counsel
Dean Witter, Discover & Co.
Two World Trade Center
66th Floor
New York, New York 10048
(212) 392-2222
(Name, address and telephone number of agent for service)
---------------------------------------------------------
Copies to:
Joseph W. Armbrust, Esq. Timothy G. Hoxie, Esq.
Brown & Wood LLP Heller, Ehrman, White & McAuliffe
One World Trade Center 333 Bush Street
New York, New York 10048 San Francisco, CA 94104
(212) 839-5300 (415) 772-6000
------------------------------
Approximate date of commencement of proposed sale to the public: from
time to time after the effective date of this Registration Statement
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 ("Securities Act"), 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 Section
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 under the Securities Act, please check the following box. / /
Calculation of Registration Fee
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Proposed Maximum Proposed Maximum
Offering Price Per Aggregate Offering
Title of Securities Amount to be Share (1) Price Amount of
to be Registered Registered Registration Fee
Common Stock, par
value $.01 per 858,800 shares $41.75 $35,854,900 $10,865.12
share
Rights to Purchase
Series A Junior
Participating 429,400 rights N/A N/A N/A
Preferred Stock (2)
</TABLE>
(1) Estimated solely for purposes of determining the registration fee and
calculated pursuant to Rule 457(c) under the Securities Act based on the
average of the high and low prices reported on the New York Stock Exchange
as of February 21, 1997.
(2) The Rights to Purchase Series A Junior Participating Preferred Stock
will be attached to and trade with shares of the Common Stock. Value
attributable to such Rights, if any, will be reflected in the market price
of the shares of Common Stock.
THE COMPANY HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE COMPANY
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 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
Information contained herein is subject to completion or amendment. A
registration statement relating to these Securities has been filed with
the Securities and Exchange Commission. These Securities may not be sold
nor may offers to buy be accepted prior to the time the registration
statement becomes effective. This prospectus shall not constitute an
offer to sell or the solicitation of an offer to buy nor shall there be
any sale of the Securities in any State in which such offer, solicitation
or sale would be unlawful prior to registration or qualification under the
securities laws of any such State.
SUBJECT TO COMPLETION, DATED FEBRUARY 26, 1997
PROSPECTUS
DEAN WITTER, DISCOVER & CO.
858,800 SHARES OF COMMON STOCK
This Prospectus relates to the offer and sale from time to time by
the selling stockholders named herein (the "Selling Stockholders") of a
total of up to 858,800 shares (the "Shares") of common stock, par value
$.01 per share ("Common Stock"),of Dean Witter, Discover & Co., a Delaware
corporation (the "Company"). The Company will not receive any of the
proceeds of the sale of the Shares.
The Common Stock is listed on the New York Stock Exchange ("NYSE")
under the trading symbol "DWD". The closing price of the Common Stock on
February 21, 1997 on the NYSE was $41.25 per share.
The Selling Stockholders or certain other persons directly or through
agents, brokers or dealers designated from time to time may sell Shares
from time to time, on terms to be determined at the time of sale. See
"Plan of Distribution."
The Company has agreed to bear all expenses of registration of the
Shares under federal and state securities laws. The Company and the
Selling Stockholders have agreed to indemnify each other against certain
civil liabilities, including certain liabilities under the Securities Act
of 1933, as amended (the "Securities Act").
_________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
__________________
The date of this Prospectus is _________, 1997.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT.
A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD
NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION
STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN
OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE
ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE LAWS OF ANY SUCH STATE.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS
IN CONNECTION WITH ANY OFFER MADE THROUGH THIS PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER OR THEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE
HEREOF OR THEREOF OR THAT THE INFORMATION CONTAINED HEREIN OR THEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER OR SOLICITATION TO BUY ANY SECURITIES OTHER THAN THE
SECURITIES DESCRIBED HEREIN OR THEREIN OR AN OFFER OR SOLICITATION BY ANYONE
IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER
OR SOLICITATION IN SUCH JURISDICTION.
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Securities and
Exchange Commission ("Commission") are hereby incorporated in and made a
part of this Prospectus by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995.
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1996, June 30, 1996 and September 30, 1996.
(c) The Company's Current Reports on Form 8-K dated January 4, 1996,
January 8, 1996, January 23, 1996, April 18, 1996, July 18, 1996, October
23, 1996, January 22, 1997, February 4, 1997 (2) and February 20, 1997.
(d) The description of the Common Stock contained in the Company's
Registration Statement on Form 10 filed with the Commission pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on January 15, 1993, as amended by the description
contained in the Company's Forms 8 dated February 11, February 21 and
February 22, 1993.
(e) The description of the Company's Shareholder Rights Plan contained in
the Company's Registration Statement on Form 8-A filed with the Commission
pursuant to Section 12 of the Exchange Act on April 26, 1995, as amended
by the Form 8-A/A dated May 4, 1995.
All documents subsequently filed by the Company pursuant to Section
13(a), Section 13(c), Section 14 and Section 15 of the Exchange Act prior to
the filing of a post-effective amendment to the registration statement that
indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed incorporated herein by
reference from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes
of this Prospectus to the extent that a statement incorporated by reference
herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy
of this Prospectus is delivered, upon written or oral request, a copy of
any or all of the documents incorporated herein by reference (other than
exhibits to such documents, unless such exhibits are specifically
incorporated by reference herein). Requests should be directed to The
Office of Investor Relations and Shareholder Services, Dean Witter,
Discover & Co., Two World Trade Center, 56th Floor, New York, New York
10048 (telephone number 212-392-1328).
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Exchange Act and in accordance therewith, files reports, proxy statements
and other information with the Commission. Such reports, proxy statements
and other information can be inspected and copied in the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street,
N.W., Washington, D.C. 20549, as well as the Regional Offices of the
Commission at 7 World Trade Center, 13th Floor, New York, New York 10048
and at Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Ill 60661-2511. Copies of such material can be obtained at
prescribed rates from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549. In addition, certain
reports, proxy material and other information can be inspected at the
offices of The New York Stock Exchange, Inc., 20 Broad Street, New York,
New York 10005 and The Pacific Stock Exchange Incorporated, 301 Pine
Street, San Francisco, California 94104, on which exchanges the Common
Stock is listed. In addition, the Commission maintains a site on the
World Wide Web portion of the Internet that contains reports, proxy and
information statements and other information regarding registrants,
including the Company, that file electronically with the Commission. The
address of such site is http://www.sec.gov.
Additional information regarding the Company and the Shares offered
hereby is contained in the Registration Statement on Form S-3 (of which
this Prospectus is a part) filed by the Company with the Commission under
the Securities Act. This Prospectus does not contain all the information
set forth in the Registration Statement, as permitted by the rules and
regulations of the Commission. For further information regarding the
Company and the Shares offered hereby, please refer to the Registration
Statement, including documents incorporated by reference therein and the
exhibits and schedules thereto, which is available for copying and inspection
as set forth above. Statements contained in this Prospectus or in any
document incorporated herein by reference as to the contents of any contract
or other document referred to herein or therein are not necessarily complete
and in each instance reference is made to the copy of such contract or other
document filed as an exhibit to the Registration Statement or such other
document, and each statement shall be deemed qualified in its entirety by
such reference.
THE COMPANY
The Company is a diversified financial services organization that
provides a broad range of nationally marketed credit and investment
products, with a primary focus on individual customers. The Company has
two principal lines of business: credit services and securities. Its
credit services business consists primarily of the issuance, marketing and
servicing of general purpose credit cards. The Company is the largest
single domestic issuer of general purpose credit cards as measured by
number of accounts and cardmembers. Discover(Registered Trademark) Card
is the Company's most widely held proprietary general purpose credit card
and generated a majority of the credit service business' revenues and net
income in 1996. The Company's securities business is conducted primarily
through its wholly-owned subsidiaries, Dean Witter Reynolds Inc. ("DWR")
and Dean Witter InterCapital Inc. ("InterCapital"). DWR is a full-service
securities firm that engages in a wide variety of securities activities,
with a particular focus on serving the investment needs of its individual
clients through its approximately 9,000 account executives. DWR is among
the largest members of the NYSE and is a member of other major securities,
futures and options exchanges. InterCapital, with total assets of $90
billion under management or administration as of December 31, 1996, is one
of the largest asset management operations in the United States. The
Company's principal executive offices are located at Two World Trade
Center, New York, New York 10048 (telephone number 212-392-2222).
RECENT DEVELOPMENTS
On February 5, 1997, the Company and Morgan Stanley Group Inc. ("Morgan
Stanley") announced a definitive agreement to merge. The combined company
would be a preeminent global financial services firm with a market
capitalization of approximately $21 billion (as of the time of the merger
announcement) and with leading market positions in the securities, asset
management and credit services businesses. The new company will be named
Morgan Stanley, Dean Witter, Discover & Co. The merger would combine the
Company's strength in retail distribution, asset management and credit
services with Morgan Stanley's strengths in investment banking and
institutional sales and trading. Through a network of 28 principal offices
in 19 countries, Morgan Stanley offers a complete range of financial
services to sovereign governments, corporations, institutions and
individuals. A leader in investment banking since its formation in 1935,
Morgan Stanley ranked first in the world in mergers and acquisition advisory
assignments and held a leading position in debt and equity underwriting in
1996. In asset management, the combination would result in a business that
manages more than $270 billion of assets on a pro forma basis. Under the
terms of the merger agreement unanimously approved by the Boards of both
companies, each of Morgan Stanley's common shares will be exchanged for
1.65 of the Company's common shares. Morgan Stanley preferred shares
outstanding at the date of the merger will be exchanged for preferred shares
of the Company having substantially identical terms. The transaction, which
is expected to be completed in mid-1997, is intended to be a tax-free
exchange and accounted for as a pooling of interests and is subject to
customary closing conditions, including certain regulatory approvals and the
approvals of shareholders of both companies. Pursuant to the pooling of
interests method of accounting, prior to the time of closing, each company
will formally rescind any stock repurchase authorizations existing at that
time.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the
Shares, but will bear certain of the expenses thereof. See "Plan of
Distribution" below.
SELLING STOCKHOLDERS
The following table sets forth certain information as of the date of
this Prospectus with respect to the Common Stock owned by them.
Name of Selling Stockholder Beneficial Ownership of Common Stock
Before After
Offering(1) Offered(1) Offering(1)(2)
The 1994 Roach Family Trust 887,082 405,747 481,335
The Thomas F. White 1991 Trust 841,001 359,666 481,335
Robert Angle 93,387 93,387 0
Total Offered 858,800
__________________
(1) In each case, less than 1% of shares outstanding based upon
321,218,945 shares of the Company's Common Stock outstanding as of January
31, 1997.
(2) Because each of the Selling Stockholders may sell pursuant to this
Prospectus all or only a portion of the Shares owned by each, no estimate
can be given as to the amount of Common Stock that will be owned by each
upon termination of this offering. For purposes of this table, it has
been assumed that each Selling Stockholder will sell all of its offered
shares.
None of the Selling Stockholders has held any position or office or
had any other material relationship with the Company or any of its
affiliates within the past three years except as set forth in the
following two paragraphs.
V. Eric Roach ("Roach"), Trustee of The 1994 Roach Family Trust (the
"Roach Trust"), was a founder of Lombard Brokerage, Inc. ("Lombard"), and
its President and Chief Executive Officer for more than the past three
years, until the Company, through a wholly-owned subsidiary, acquired
Lombard in January 1997 (the "Acquisition"). Roach also served as a
director of Lombard for more than the past three years until the
Acquisition. In connection with the Acquisition, Roach entered into an
employment agreement with Lombard pursuant to which Roach continues to
serve as Chairman of the Board of Directors and Chief Executive Officer of
Lombard. As of the date of this Prospectus, Roach is not the beneficial
owner of any shares of Common Stock, other than the shares held by the
Roach Trust.
Thomas F. White ("White"), Trustee of The Thomas F. White 1991 Trust
(the "White Trust"), was a founder of Lombard and Chairman of its Board of
Directors within the past three years. He currently holds no positions
with Lombard. As of the date of this Prospectus, White is not the
beneficial owner of any shares of Common Stock, other than the shares held
by the White Trust.
Robert Angle was a director of Lombard within the last three years.
He currently holds no positions with Lombard.
PLAN OF DISTRIBUTION
The Shares may be offered by the Selling Stockholders, directly or
indirectly, from time to time in on or more transactions which may be
effected in any legally available manner, including without limitation on
the NYSE or the Pacific Stock Exchange, in negotiated transactions, on terms
to be determined at the time of sale, at fixed prices which may be changed,
at prices related to prevailing market prices or at negotiated prices. The
Selling Stockholders may also distribute shares to family members or
charities. The Selling Stockholders may effect such transactions by
selling the Shares to or through broker-dealers, and such broker-dealers may
receive compensation in the form of discounts, concessions or commissions
from the Selling Stockholders and/or the purchasers of the Shares for whom
such broker-dealers may act as agents or to whom they may sell as
principals, or both (which compensation as to a particular broker-dealer
might be in excess of customary commissions). The Selling Stockholders, and
any agent or broker-dealers that participate with the Selling Stockholders
in the distribution of the Shares, may be deemed to be "underwriters" within
the meaning of the Securities Act, and any commissions received by them and
any profit on their resale of the Shares may be deemed to be underwriting
commissions or discounts under the Securities Act. In addition, any of the
Shares which qualify for sale pursuant to Rule 144 under the Securities Act
may be sold under Rule 144 rather than pursuant to this Prospectus.
Under the securities laws of certain states, the Shares may be sold
in such states only through registered or licensed brokers or dealers.
The Company will pay all of the expenses incident to the
registration, offering and sale of the Shares to the public hereunder
other than commissions, fees and discounts of underwriters, brokers,
dealers and agents (which will be described in an applicable prospectus
supplement to the extent required). The Company and the Selling
Stockholders have agreed to indemnify each other against certain
liabilities, including liabilities under the Securities Act.
LEGAL MATTERS
The validity of the shares of Common Stock (including related rights
under the Company's Shareholder Rights Plan) offered hereby will be passed
upon by Brown & Wood LLP.
EXPERTS
The consolidated financial statements and related supplemental
schedules of the Company and its subsidiaries incorporated in this
Prospectus by reference to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1995 have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their reports incorporated
by reference herein, and have been so incorporated by reference in
reliance upon such reports given upon the authority of that firm as
experts in accounting and auditing.
With respect to the unaudited interim financial information for the
periods ended March 31, June 30 and September 30, 1996 and 1995 which is
incorporated herein by reference, Deloitte & Touche LLP have applied
limited procedures in accordance with professional standards for a review
of such information. However, as stated in their reports included in the
Company's Quarterly Reports on Form 10-Q for the quarters ended March 31,
June 30 and September 30, 1996 and incorporated by reference herein, they
did not audit and they do not express an opinion on that interim financial
information. Accordingly, the degree of reliance on their report on such
information should be restricted in light of the limited nature of the
review procedures applied. Deloitte & Touche LLP are not subject to the
liability provisions of Section 11 of the Securities Act for their reports
on the unaudited financial information because those reports are not
"reports" or a "part" of the registration statement prepared or certified
by an accountant within the meaning of Sections 7 and 11 of the Securities
Act.
The consolidated financial statements (and related supplemental
schedules) of Morgan Stanley and its subsidiaries incorporated in this
Prospectus by reference to the Company's Current Report on Form 8-K filed
February 20, 1997 have been audited by Ernst & Young LLP, independent
auditors, to the extent indicated in their reports thereon also
incorporated by reference herein. Such consolidated financial statements
(and related supplemental schedules) have been incorporated herein by
reference in reliance upon such reports given upon the authority of such
firm as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses to be borne by the Company in connection with the
issuance and distribution of the securities being registered are estimated
as follows:
<TABLE>
<CAPTION>
<S> <C>
SEC Registration Fee . . . . . . . . . . . . . . . . . . . . . . . . . $ 10,865.12
Legal Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . 10,000.00
Accounting Fees and Expenses . . . . . . . . . . . . . . . . . . . . . 10,000.00
Printing Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,000.00
Transfer Agent and Registrar Fees . . . . . . . . . . . . . . . . . . . 5,000.00
Miscellaneous Expenses . . . . . . . . . . . . . . . . . . . . . . . . 4,134.88
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 45,000.00
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the General Corporation Law of the State of Delaware
(the "GCL") allows a corporation to eliminate the personal liability of a
director to the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, except in cases where the director
breached his or her duty of loyalty, failed to act in good faith, engaged
in intentional misconduct or a knowing violation of the law, authorized
the unlawful payment of a dividend or approved an unlawful stock
redemption or repurchase or obtained an improper personal benefit. The
Company's Amended and Restated Certificate of Incorporation, as amended,
contains a provision which eliminates directors' personal liability as set
forth above.
The Company's Amended and Restated Certificate of Incorporation, as
amended, and the Company's Amended and Restated By-Laws provide in effect
that the Company shall indemnify its directors and officers, and may
indemnify its employees, to the extent permitted by Section 145 of the
GCL. Section 145 of the GCL provides that a Delaware corporation has the
power to indemnify its directors, officers and employees in certain
circumstances.
Subsection (a) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer or employee, or former director or
officer or employee, who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an
action by or in the right of the corporation), against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred in connection with such action, suit or proceeding
provided that such director or officer or employee acted in good faith and
in a manner reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, provided that such director or officer or employee had no
cause to believe that his or her conduct was unlawful.
Subsection (b) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer or employee, or former director or
officer or employee, who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by reason of
the fact that such person acted in any of the capacities set forth above,
against expenses (including attorneys' fees) actually and reasonably
incurred with the defense or settlement of such action or suit provided
that such person acted in good faith and in a manner reasonably believed
to be in or not opposed to the best interests of the corporation, except
that no indemnification may be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to
the corporation unless and only to the extent that the Court of Chancery
shall determine that despite the adjudication of liability such person is
fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 145 further provides that to the extent that a director or
officer or employee of a corporation has been successful in the defense of
any action, suit or proceeding referred to in subsections (a) and (b) or
in the defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection therewith; that
indemnification provided by Section 145 shall not be deemed exclusive of
any other rights to which the party seeking indemnification may be
entitled; and empowers the corporation to purchase and maintain insurance
on behalf of a director or officer or employee of the corporation against
any liability asserted against him or her or incurred by him or her in any
such capacity or arising out of his or her status as such whether or not
the corporation would have the power to indemnify him or her
against such liabilities under Section 145.
The Company has in effect insurance policies in the amount
of $75 million for general officers' and directors, liability
insurance and $25 million for fiduciary liability insurance
covering all of the Company's directors and officers in certain
instances where by law they may not be indemnified by the
Company.
ITEM 16. EXHIBITS.
4.1 Amended and Restated Certificate of Incorporation. Filed
as Exhibit 3.1 to the Company's Registration Statement
No. 33-56104 on Form S-1 and incorporated herein by
reference.
4.2 Certificate of Designation of the Company relating to the
Company's Series A Junior Participating Preferred Stock.
Filed as Exhibit 3(b) to the Company's Registration
Statement No. 33-92172 on Form S-3 and incorporated
herein by reference.
4.3 Certificate of Amendment to Amended and Restated
Certificate of Incorporation of the Registrant as filed
with the Secretary of State of the State of Delaware on
May 24, 1995. Filed as Exhibit 3(c) to the Company's
Registration Statement No. 33-92172 on Form S-3 and
incorporated herein by reference.
4.4 Amended and Restated By-Laws. Filed as Exhibit 3 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1995 and incorporated herein by
reference.
4.5 Rights Agreement, dated as of April 25, 1995, between
Dean Witter, Discover & Co. and Chemical Bank, as Rights
Agent, which includes as Exhibit B thereto the Form of
Rights Certificate, incorporated herein by reference to
Exhibit 1 to the Company's Registration Statement on Form
8-A dated April 26, 1995.
5.1 Opinion of Brown & Wood LLP.
15.1 Letter of awareness from Deloitte & Touche LLP concerning
unaudited interim financial information.
23.1 Consent of Deloitte & Touche LLP as to financial
statements of the Company for the year ended December 31,
1995.
23.2 Consent of Brown & Wood LLP (included as part of Exhibit
5.1).
23.3 Consent of Ernst & Young LLP.
24.1 Powers of Attorney (included in Part II of the
Registration Statement under the caption "Signatures").
ITEM 17. UNDERTAKINGS.
(a) The undersigned Company 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 the volume of securities
offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the
high or low end of the estimated maximum offering range may be
reflected in the form of a prospectus filed with the Commission
pursuant to Rule 424(b) 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
(a)(1)(i) and (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 by the Company pursuant to
Section 13 or Section 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; and
(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 Company hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the Company's annual report pursuant to
Section 13(a) or Section 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 Company pursuant to the
foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or paid by a
director, officer or controlling person of the Company 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 Company will, unless in
the opinion of 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 a final
adjudication of such issue.
(d) The undersigned hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this Registration Statement in
reliance upon Rule 430A and contained in a form of prospectus
filed by the Company pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
Registration Statement related 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, the Company certifies that it has reasonable grounds
to believe that it meets all 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
New York, New York, on this 26th day of February, 1997.
DEAN WITTER, DISCOVER & CO.
By: /s/ Philip J. Purcell
Philip J. Purcell
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose
signature appears below hereby constitutes and appoints Christine
A. Edwards, Mitchell M. Merin, Ronald T. Carman and Michael T.
Gregg, and each of them singly, his or her true and lawful
attorney-in-fact and agent with full power of substitution and
resubstitution, for him or her and in his or her name, place and
stead, in any and all capacities, to sign any and all amendments,
including post-effective amendments, to this Registration
Statement (any of which amendments may make such changes and
additions to this Registration Statement as such attorneys-in-
fact may deem necessary or appropriate) and to file the same,
with all exhibits thereto, and any other documents that may be
required in connection therewith, granting unto said attorneys-
in-fact and agents full power and authority to be done in and
about the premises, as fully to all intents and purposes as he or
she might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or their substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Registration Statement has been signed below by
the following persons in the capacities indicated on this 26th
day of February, 1997.
SIGNATURES TITLE
/s/ Philip J. Purcell Chairman of the Board, Chief
_______________________ Executive Officer and
Philip J. Purcell Director (Principal Executive
Officer)
/s/ Thomas C. Schneider Executive Vice President and
_______________________ Chief Financial Officer
Thomas C. Schneider (Principal Financial Officer)
/s/ Robert P. Seass Senior Vice President and
_______________________ Controller (Principal
Robert P. Seass Accounting Officer)
/s/ Nancy Kassebaum Baker Director
_______________________
Nancy Kassebaum Baker
/s/ Edward A. Brennan Director
_______________________
Edward A. Brennan
/s/ Alfred C. DeCrane, Jr. Director
_______________________
Alfred C. DeCrane, Jr.
/s/ Robert M. Gardiner Director
_______________________
Robert M. Gardiner
/s/ C. Robert Kidder Director
_______________________
C. Robert Kidder
/s/ Miles L. Marsh Director
_______________________
Miles L. Marsh
/s/ Michael A. Miles Director
_______________________
Michael A. Miles
/s/ Sybil C. Mobley Director
_______________________
Sybil C. Mobley
/s/ Clarence B. Rogers, Jr. Director
_______________________
Clarence B. Rogers, Jr.
EXHIBIT INDEX
4.1 Amended and Restated Certificate of Incorporation. Filed
as Exhibit 3.1 to the Company's Registration Statement
No. 33-56104 on Form S-1 and incorporated herein by
reference.
4.2 Certificate of Designation of the Company relating to the
Company's Series A Junior Participating Preferred Stock.
Filed as Exhibit 3(b) to the Company's Registration
Statement No. 33-92172 on Form S-3 and incorporated
herein by reference.
4.3 Certificate of Amendment to Amended and Restated
Certificate of Incorporation of the Registrant as filed
with the Secretary of State of the State of Delaware on
May 24, 1995. Filed as Exhibit 3(c) to the Company's
Registration Statement No. 33-92172 on Form S-3 and
incorporated herein by reference.
4.4 Amended and Restated By-Laws. Filed as Exhibit 3 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1995 and incorporated herein by
reference.
4.5 Rights Agreement, dated as of April 25, 1995, between
Dean Witter, Discover & Co. and Chemical Bank, as Rights
Agent, which includes as Exhibit B thereto the Form of
Rights Certificate, incorporated herein by reference to
Exhibit 1 to the Company's Registration Statement on Form
8-A dated April 26, 1995.
5.1 Opinion of Brown & Wood LLP.
15.1 Letter of awareness from Deloitte & Touche LLP concerning
unaudited interim financial information.
23.1 Consent of Deloitte & Touche LLP as to financial
statements of the Company for the year ended December 31,
1995.
23.2 Consent of Brown & Wood LLP (included as part of Exhibit
5.1).
23.3 Consent of Ernst & Young LLP.
24.1 Powers of Attorney (included in Part II of the
Registration Statement under the caption "Signatures").
EXHIBIT 5.1
February 26, 1997
Dean Witter, Discover & Co.
Two World Trade Center
New York, New York 10048
Ladies and Gentlemen:
We are special counsel to Dean Witter, Discover & Co., a Delaware
corporation (the "Company"), in connection with the proposed offering by
certain stockholders of the Company (the "Selling Stockholders") of an
aggregate of 858,800 shares of the Company's Common Stock, par value $.01
per share (the "Shares"), and the related 429,400 Rights to Purchase Series
A Junior Participating Preferred Stock ("Rights") issued to the Selling
Stockholders in connection with the transactions contemplated by the
Agreement and Plan of Merger, dated as of December 20, 1996, by and among
the Company, the Selling Stockholders and various other parties.
This opinion is delivered in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the
Securities Act of 1933, as amended (the "Securities Act").
In connection with this opinion, we have examined and are familiar
with originals or copies, certified or otherwise identified to our
satisfaction, of (i) the Registration Statement on Form S-3 relating to the
Shares and the Rights to be filed with the Securities and Exchange
Commission under the Securities Act (together with all exhibits thereto, the
"Registration Statement"), (ii) the Amended and Restated Certificate of
Incorporation of the Company as currently in effect, (iii) the By-laws of
the Company as currently in effect, (iv) specimens of the certificates to be
used to represent the Shares and (v) resolutions of the Board of Directors
of the Company relating to the authorization of the issuance of the Shares
and the Rights and the filing of the Registration Statement. We have also
examined originals or copies, certified or otherwise identified to our
satisfaction, of such records of the Company and such agreements,
certificates of public officials, certificates of officers or
representatives of the Company and others, and such other documents,
certificates and records as we have deemed necessary or appropriate as a
basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of
all natural persons, the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us
as certified or photostatic copies and the authenticity of the
originals of such latter documents. As to any facts material to
the opinions expressed herein that were not independently
established or verified, we have relied upon oral or written
statements and representations of officers and other
representatives of the Company and others.
Based upon the foregoing and subject to the limitations set
forth herein, we are of the opinion that:
1. The Shares have been duly authorized, validly issued,
fully paid and nonassessable.
2. The Rights have been duly authorized by all necessary
corporate action of the Company and are validly issued.
We do not purport to be experts on, and we are not
expressing an opinion with respect to, laws other than the laws
of the United States and the State of New York and the General
Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as Exhibit
5.1 to the Registration Statement and the reference to the use of
our firm name under the caption "Legal Matters" therein.
Very truly yours,
Brown & Wood LLP
EXHIBIT 15.1
To the Directors and Shareholders of
Dean Witter, Discover & Co.:
We have made a review, in accordance with standards established
by the American Institute of Certified Public Accountants, of the
unaudited interim consolidated financial information of Dean
Witter, Discover & Co. and subsidiaries for the periods ended
March 31, 1996 and 1995, June 30, 1996 and 1995, and September
30, 1996 and 1995, as indicated in our reports dated May 15,
1996, August 14, 1996, and November 13, 1996, respectively;
because we did not perform an audit, we expressed no opinion on
that information.
We are aware that our reports referred to above, which are
included in your Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1996, June 30, 1996, and September 30, 1996, are
being used in this Registration Statement.
We are also aware that the aforementioned reports, pursuant to
Rule 436(c) under the Securities Act of 1933, are not considered
a part of the Registration Statement prepared or certified by an
accountant or a report prepared or certified by an accountant
within meaning of Sections 7 and 11 of that Act.
Deloitte & Touche LLP
New York, New York
February 26, 1997
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Dean Witter, Discover & Co. ("DWDC") on Form S-3
(relating to the registration of 858,800 shares of common stock
and 429,400 rights to purchase series A junior participating
preferred stock) of our reports dated February 21, 1996,
appearing in and incorporated by reference in the Annual Report
on Form 10-K of DWDC for the year ended December 31, 1995, and to
the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
Deloitte & Touche LLP
New York, New York
February 26, 1997
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption
"Experts" and to the use of our reports dated January 4, 1996 and
February 23, 1996 with respect to the consolidated financial
statements and financial statement schedule, respectively, of
Morgan Stanley Group Inc. incorporated by reference in the
Registration Statement (Form S-3) and related Prospectus of Dean
Witter, Discover & Co. for the registration of 858,000 shares of
its common stock, par value $.01 per share, and 429,400 rights to
purchase Series A Junior Participating Preferred Stock.
ERNST & YOUNG LLP
New York, New York
February 26, 1997
