REGISTRATION RIGHTS AGREEMENT
AGREEMENT, made as of the 9th day of December, 1998, by and
between Metris Companies Inc., a corporation organized and
existing under the laws of Delaware (the "Company") and those
persons whose names appear on the signature page hereof
designated as investors (collectively, the "Investors").
WHEREAS, the Investors have entered into a Securities
Purchase Agreement (the "Purchase Agreement") pursuant to which
on the date hereof they are acquiring shares of Series B
Perpetual Preferred Stock of the Company, par value $.01 per
share (the "Series B Preferred Stock"), senior notes due 2006 of
the Company (the "Senior Notes") and warrants to purchase shares
of the Common Stock, par value $.01 per share of the Company
(including the rights to acquire Series A Junior Participating
Preferred Stock of the Company associated therewith) (the
"Warrants", and collectively with the Series B Preferred Stock
and the Senior Notes, referred to as the "Securities");
WHEREAS, the Securities, upon the occurrence of certain
events, shall automatically be exchanged (the "Exchange") for
shares of the Company's Series C Perpetual Convertible Preferred
Stock, par value $.01 per share (the "Series C Preferred Stock"),
each such share to be convertible in accordance with the
Certificate of Designation of the Series C Preferred Stock into
shares of Common Stock, par value $.01 per share, of the Company
(including the rights to acquire Series A Junior Participating
Preferred Stock of the Company associated therewith), Non-Voting
Common Stock, $.01 par value, of the Company (the "Non-Voting
Common Stock") and Series D Junior Participating Convertible
Preferred Stock, $.01 par value, of the Company (the "Series D
Preferred Stock");
WHEREAS, the execution of this Agreement by the Company is a
condition precedent to the obligations of the Investors to
perform their obligations under the Purchase Agreement; and
WHEREAS, the Investors acknowledge the existence of certain
registration rights granted to Xxxxxx X. Xxxx ("Xxxx") pursuant
to the Settlement Agreement, dated as of October 18, 1996, by and
among Fingerhut Companies, Inc., the Company and Xxxx (the
"Settlement Agreement").
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
"Act" means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the
time.
"Commission" means the Securities and Exchange Commission,
or any other Federal agency at the time administering the Act.
"Company" means Metris Companies Inc., a Delaware
corporation, and its successors and assigns, including any
successors by merger.
"Determination Date" means the earlier of (i) the day after
the stockholders of the Company vote on the Exchange at a meeting
of the stockholders called for such purpose, whether or not the
Exchange is approved, and (ii) June 30, 1999.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall
be in effect at the time.
"Holder" means the person who is then the record owner of
Registrable Securities which have not been sold to the public.
"Xxxx Securities" means (i) the 96,125 shares of Common
Stock issuable pursuant to the exercise of an option granted to
Xxxx under the Settlement Agreement, and (ii) any Common Stock
issued in respect of the shares described in clause (i) upon any
stock split, stock dividend, recapitalization or other similar
event.
"Liquidated Damages" shall have the meaning set forth in
Section 12(g) hereof.
"Registrable Securities" means (i) all Securities now owned
or hereafter acquired by an Investor, (ii) all shares of Series
C Preferred Stock now owned or hereafter acquired by an Investor,
(iii) all shares of Common Stock, Non-Voting Common Stock and
Series D Preferred Stock now owned or hereafter acquired by an
Investor; (iv) all shares of Common Stock, Non-Voting Common
Stock and Series D Preferred Stock issuable with respect to
securities of the Company convertible into or exercisable for
shares of Common Stock, Non-Voting Common Stock and Series D
Preferred Stock now owned or hereafter acquired by any Investor,
including but not limited to, Common Stock, Non-Voting Common
Stock or Series D Preferred Stock issuable upon conversion of
Series C Preferred Stock; (v) all shares of Series C Preferred
Stock issuable with respect to securities of the Company
convertible into or exercisable for shares of Series C Preferred
Stock now owned or hereafter acquired by an Investor, including
but not limited to, Series C Preferred Stock issuable upon the
exchange of any Securities; and (vi) any Securities, Series C
Preferred Stock, Common Stock, Non-Voting Common Stock and Series
D Preferred Stock issued in respect of the securities described
in clause (i), (ii), (iii), (iv), or (v) upon any stock split,
stock dividend, recapitalization or other similar event.
The term "register" means to register under the Act and
applicable state securities laws for the purpose of effecting a
public sale of securities.
All capitalized words used herein as defined terms and not
otherwise defined shall have the meaning ascribed thereto in the
Purchase Agreement.
2. Registration Rights. (a) Within sixty (60) days of the
Determination Date, but in no event later than June 30, 1999, the
Company shall (and cause any Subsidiaries required to register as
guarantors to) file with the Commission a registration statement
on Form S-3 (or any successor form to Form S-3) for a public
resale offering of the Registrable Securities of the Holders and
shall use its reasonable best efforts to cause such registration
statement to become and remain effective for the period ending on
the date the resale of all shares registered thereunder is
complete. If for any reason the Company is not eligible to file
such registration statement on Form S-3 (or any successor form to
Form S-3), the Company shall effect such registration using such
form as the Company is then eligible to use.
(b) In the case of any registration pursuant to this
Section 2, the Company shall keep each person whose securities
are to be registered thereunder (a "Selling Holder") advised of
the initiation and completion of such registration. At its
expense, except as provided in Section 2(b)(iv) below, the
Company will promptly:
(i) Prepare and file with the Commission the
registration statement described in Section 2(a) above and
thereafter use reasonable best efforts to cause such registration
statement to become effective;
(ii) Prepare and file with the Commission such
amendments and supplements to such registration statement and the
prospectuses used in connection with such registration statement
as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by such registration statement;
(iii) Furnish to the Selling Holders such
numbers of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities
Act, and such other documents as they may reasonably request in
order to facilitate the disposition of the securities covered by
such registration statement;
(iv) Use commercially reasonable efforts to
register and qualify the securities covered by such registration
statement under such other securities or Blue Sky laws of such
jurisdictions as shall be reasonably requested by the Selling
Holders, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in
any such states or jurisdictions;
(v) Notify each Selling Holder covered by such
registration statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of
the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances then existing;
(vi) Cause all such shares of Registrable
Securities to be listed on each securities exchange or market
system on which similar securities issued by the Company are then
listed; and
(vii) Provide a transfer agent and registrar
for all such shares of Registrable Securities not later than the
effective dates of such registration statements.
(c) Each Selling Holder and the Company shall provide
the Company with all necessary and reasonable assistance in the
preparation and filing of the registration statement required to
be prepared and filed by the Company and all other obligations of
the Company under this Section 2.
(d) The Company shall pay the expenses incurred by it
in complying with its obligations under this Section 2,
including, without limitation, all registration and filing fees,
exchange listing fees, fees and expenses of counsel for the
Company, and fees and expenses of accountants for the Company.
(e) The Company shall have the right, upon the advice
of the Board of Directors of the Company (the "Board"), upon
giving written notice to each Selling Holder of the exercise of
such right, to require such Selling Holder not to sell any shares
pursuant to the registration statement filed pursuant to Section
2 for a period (as determined in good faith by the Board) from
the date on which such notice is given (a "black-out period"), if
(i)(A) the Company is engaged in discussions or negotiations with
respect to, or has proposed or taken a substantial step to
commence, or there otherwise is pending, any merger, acquisition,
other form of business combination, divesture, tender offer,
financing or other transaction, or there is an event or state of
facts relating to the Company, in each case which is material to
the Company (as reasonably determined by the Board) ( any such
negotiation, step, event or state of facts being herein called
"Material Activity"), (B) in the reasonable judgment of the
Board, after consultation with and acting upon the written advice
of outside counsel, disclosure of such Material Activity would be
necessary or advisable under applicable securities laws and (C)
such disclosure would, in the reasonable judgment of the Board,
be adverse to the interests of the Company, or (ii) the Board, in
its reasonable judgment, after consultation with and acting upon
the written advice of outside counsel, deems it necessary to file
a post-effective amendment to such registration statement or to
prepare a supplement to, or otherwise amend, the form of
prospectus contained therein. During any such black-out period,
each Selling Holder agrees not to sell any Registrable Shares
under such registration statement for such period of time as the
Board, acting on the written advice of outside counsel, may in
good xxxxx xxxx advisable; provided, however, that no single
black-out period will be longer than sixty (60) calendar days
and, in the aggregate, all black-out periods in any twelve (12)
month period shall not include more than one hundred twenty
(120) calendar days; provided, further, however, that no black-
out period may be imposed by the Company during the first thirty
calendar days after the effectiveness of the registration
statement filed pursuant to Section 2. The period of
effectiveness of any registration statement in effect at the time
of a black-out period and the termination period under Section 5
shall be extended for a period equal to the black-out period.
3. Acknowledgment. The Investors hereby acknowledge and
agree that (i) under the Settlement Agreement, the Company has
the obligation to permit registration of all of the Xxxx
Securities by way of a piggyback registration with respect to a
registration statement filed by the Company, and (ii)
accordingly, if the Company shall determine to register any of
the Xxxx Securities pursuant to such registration rights, the
Investors shall not object to the inclusion in the registration
described in Section 2 of all or any portion of such Xxxx
Securities held by Xxxx; provided that, such securities shall not
be included in any underwritten offering of all or a portion of
the Registrable Shares initiated solely by the Investors without
the consent of the Investors.
4. Underwritten Offering. At the election of a majority
in interest of the Holders, all or any portion of the Registrable
Securities may be distributed by means of an underwriting;
provided that such right may be exercised no more than three (3)
times.
(a) Selection of an Underwriter. The underwriter of
any underwriting requested under this Section 4 shall be selected
by a majority in interest of the Registrable Securities included
therein, subject to the consent of the Company, which consent
shall not unreasonably be withheld.
(b) Cut-backs. In connection with any offering
involving an underwriting of Registrable Shares, if the managing
underwriter of such underwriting shall have informed the Company
(which shall distribute such notice to the Holders requesting
registration in respect of such underwritten offering) by letter
of its belief that the inclusion in such underwritten
distribution of all or a specified number of such Registrable
Securities or of other securities so requested to be included
would interfere with the successful marketing of the securities
by the underwriters (such writing to state the basis of such
belief and the approximate number of Registrable Securities and
other securities so requested to be included which may be
included in such underwritten offering without such effect, if
any), then the Company may, upon written notice to all such
Holders, exclude from such underwritten offering (if and to the
extent stated by such managing underwriter to be necessary to
eliminate such effect), the number of Registrable Securities and
other securities so requested to be included, so that the
resultant aggregate amount of such securities so included in such
offering shall be equal to the amount stated in such managing
underwriter's letter (the securities so included to be
apportioned among the selling shareholders pro rata according to
their ownership of the Registrable Securities).
(c) Information Availability. In connection an
underwritten offering under this Section 4, the Company agrees to
make available for inspection by each Holder and any underwriter
participating in such underwritten distribution, and any
attorney, accountant or other agent retained by such Holder or
underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's
officers, directors and employees to supply all information
reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such underwritten
distribution.
5. Indemnification. (a) The Company agrees to indemnify
and hold harmless, to the extent permitted by law, each holder of
Registrable Securities with rights under this Agreement, against
all damages caused by any untrue or alleged untrue statement of
material fact contained in any registration statement, prospectus
or preliminary prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same are caused by
or contained in any information furnished in writing to the
Company by such holder expressly for use therein or by such
holder's failure to deliver a copy of the registration statement
or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of
copies of the same.
(b) In connection with any registration statement in
which a holder of Registrable Securities with rights under this
Agreement is participating, each such holder will furnish to the
Company in writing such information as the Company reasonably
requests for use in connection with any such registration
statement or prospectus and, to the extent permitted by law, will
indemnify and hold harmless the Company, its directors and
officers and each person who controls the Company (within the
meaning of the Securities Act) against all damages resulting from
any untrue or alleged untrue statement of material fact contained
in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or
omission is contained in any information or affidavit so
furnished in writing by such holder specifically for use in such
registration statement; provided that the obligation to indemnify
will be several, not joint and several, among such holders and
the liability of each such holder will be in proportion to and
limited to the net amount received by such holder from the sale
of Common Stock, pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder
will (i) give prompt written notice to the indemnifying party of
any claim with respect to which it seeks indemnification and (ii)
unless in such indemnified party's reasonable judgment a conflict
of interest between such indemnified and indemnifying parties may
exist with respect to such claim, permit such indemnifying party
to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party will not be subject to any
liability for any consent to the entry of any judgment or any
settlement made by the indemnified party without its consent (but
such consent will not be unreasonably withheld). An indemnifying
party who is not entitled to, or elects not to, assume the
defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by
such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of
interest may exist between such indemnified party and any other
of such indemnified parties with respect to such claim.
(d) The indemnification provided for under this
Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or
any officer, director or controlling person of such indemnified
party.
6. Current Public Information. Until all shares of
Registrable Securities subject to this Agreement have been sold,
the Company will timely file all reports required to be filed by
it under the Securities Act and the Securities Exchange Act of
1934, as amended, and the rules and regulations adopted by the
Commission thereunder, and will take such further action as any
holder or holders of Registrable Securities may reasonably
request, all to the extent required to enable such holders to
sell their shares pursuant to Rule 144 under the Securities Act
and pursuant to Form S-3 or similar registration form hereunder
adopted by the Commission. Upon written request, the Company
will deliver to such holders a written statement as to whether it
has complied with such requirements.
7. Termination of Registration Rights. Notwithstanding
the foregoing provisions of this Agreement, the Company's
obligations pursuant to Section 2 shall terminate, with respect
to a given Holder, at the time such Holder (i) is not an
affiliate of the Company and has not been so for the ninety (90)
consecutive days prior to the date of determination and (ii) may
sell all of his or her shares of Common Stock in compliance with
Rule 144 (other than pursuant to Rule 144(k)) in a single 90-day
period under the Securities Act.
8. Expenses. The Company shall pay all out-of-pocket
costs in connection with any registration pursuant to this
Agreement. The costs and expenses of any such registration shall
include, without limitation, the fees and expenses of the
Company's counsel and its accountants and all other out-of-pocket
costs and expenses of the Company incident to the preparation,
printing and filing under the Securities Act of the registration
statement and all amendments and supplements thereto and the cost
of furnishing copies of each preliminary prospectus, each final
prospectus and each amendment or supplement thereto to
underwriters, dealers and other purchasers of the securities so
registered, the costs and expenses incurred in connection with
the qualification of such securities so registered under the
"blue sky" laws of various jurisdictions, the fees and expenses
of the Company's transfer agent, the fees and expenses of one
counsel for the Holders, expenses of all marketing and
promotional efforts requested by the managing underwriter all
other costs and expenses of complying with the foregoing
provisions hereof with respect to such registration and
underwriting commissions or discounts, selling agent or similar
fees payable with respect to Registrable Securities sold by the
Investors or assigns; provided that the aggregate amount of such
commissions or fees paid by the Company shall be capped at 3.3%
of such gross proceeds. The Company shall not be responsible for
paying any underwriting commission or discount, selling agent or
similar fees relating to securities sold by the Holders, except
to the extent provided in the immediately preceding sentence.
9. Listing Application. If shares of any class of stock
of the Company shall be listed on a national securities exchange,
the Company shall, at its expense, include in its listing
application all of the shares of the listed class then owned by
any Investor.
10. Damages. The Company recognizes and agrees that the
Holder of Registrable Securities shall not have an adequate
remedy if the Company fails to comply with the provisions of this
Agreement, and that damages will not be readily ascertainable,
and the Company expressly agrees that in the event of such
failure any Holder of Registrable Securities shall be entitled to
seek specific performance of the Company's obligations hereunder
and that the Company will not oppose an application seeking such
specific performance.
11. Representations and Warranties of the Company. The
Company represents and warrants to the Investor as follows:
(a) The execution, delivery and performance of this
Agreement by the Company have been duly authorized by all
requisite corporate action and will not violate any provision of
law, any order of any court or other agency of government by
which the Company or any of its properties or assets is bound,
the Amended and Restated Certificate of Incorporation or Amended
and Restated By-laws of the Company or any provision of any
indenture, agreement or other instrument to which the Company or
any or its properties or assets is bound, conflict with, result
in a breach of or constitute (with due notice or lapse of time or
both) a default under any such indenture, agreement or other
instrument or result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company.
(b) This Agreement has been duly executed and
delivered by the Company and constitutes the legal, valid and
binding obligation of the Company, enforceable against the
Company in accordance with its terms.
12. Miscellaneous.
(a) All covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto shall bind
and inure to the benefit of the respective successors and assigns
of the parties hereto (including without limitation transferees
of any Registrable Securities), whether so expressed or not.
(b) All notices, requests, consents and other
communications hereunder shall be in writing and shall be mailed
by certified or registered mail, return receipt requested,
postage prepaid, or telecopied or sent by other facsimile method
addressed as set forth on Schedule I attached hereto.
(c) This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without
giving effect to the conflicts of laws principles thereof.
(d) This Agreement may not be amended or modified, and
no provision hereof may be waived, without the written consent of
the Company and the holders of at least two-thirds of the
outstanding Registrable Securities.
(e) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
(f) If any provision of this Agreement shall be held
to be illegal, invalid or unenforceable, such illegality,
invalidity or unenforceability shall attach only to such
provision and shall not in any manner affect or render illegal,
invalid or unenforceable any other provision of this Agreement,
and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
(g) In the event that the Company has failed to
register the Senior Notes in accordance with the terms of this
Agreement, during the continuation of such failure the Company
will be obligated to pay liquidated damages ("Liquidated
Damages") to each holder of Senior Notes in an amount equal to 1%
per annum, calculated daily, on the outstanding principal amount
of Senior Notes held by such holder. All accrued Liquidated
Damages shall be paid to holders in the same manner as interest
payments on the Senior Notes, on semi-annual payment dates which
correspond to interest payment dates for the Senior Notes.
Following the cure of such failure to register these Senior Notes
in accordance with the terms of this Agreement, the accrual of
Liquidated Damages will cease.
[The Remainder of this Page is Intentionally Left Blank]
IN WITNESS WHEREOF, this Agreement has been executed by duly
authorized representation of each of the signatories hereto as of
the date and year first above written.
THE COMPANY:
METRIS COMPANIES INC.
By:/s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx Xxxxxx
Title: President and Chief Executive
Officer
INVESTORS:
XXXXXX X. XXX EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
XXXXXX X. XXX FOREIGN FUND IV, L.P. 1997
XXXXXX X. XXX NOMINEE TRUST, XXXXX X.
XXXXXXX, THE 1995 HARKINGS GIFT TRUST,
XXXXX X XXXXXX, X. XXXXXX XXXX, XXXXX X.
XXXXXXXX, XXXXXXX X. XXXXXX, XXXXXX X.
XXXXXXX, WARRENT X. XXXXX, XX., XXXX X.
XXXXX, XXXX X. XXXXXX, XXXXXXX X.
XXXXXX, XXXX X. XXXXXXXX, XXXXXXX X
XXXXXXX, XXXXX XXXXXXX, XXXXX XXXXX,
XXXXXX X. XXXXXXXX, XXXXX X XXXXXX,
XXXXXX X. XXXXXXX, XXXXXXXX X. XXXXX,
XXXXXX XXXXXX XXX 1998 IRREVOCABLE
TRUST, XXXXXXX XXXXXXX XXX, XXXXXXX X.
XXXXXX AS CUSTODIAN FOR XXXXX XXXXXX
XXX, XXXXXXX X. XXXXXX, XXXXX XXXXXX,
XXXXXX X. XXX CHARITABLE INVESTMENT
L.P., THL-CCI INVESTORS LIMITED
PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx,
Attorney-in-fact
SCHEDULE I
Company
Metris Companies Inc.
000 Xxxxx Xxxxxxx 000
Xxxxx 0000
Xx. Xxxxx Xxxx, XX 00000
Attn: Z. Xxxx Xxxxxxxx
Fax: 000-000-0000
Investors
THL Equity Fund IV, L.P., THL Foreign Fund IV, L.P.,
1997 THL Nominee Trust, Xxxxx X. Xxxxxxx, The 1995
Harkins Gift Trust, Xxxxx X. Xxxxxx, X. Xxxxxx Xxxx,
Xxxxx X. Xxxxxxxx, Xxxxxxx X. XxXxxx, Xxxxxx X.
Xxxxxxx, Xxxxxx X. Xxxxx, Xx., Xxxx X. Xxxxx, Xxxx X.
Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxx X. Xxxxxxxx, Xxxxxxx
X. Xxxxxxx, Xxxxx Xxxxxxx, Xxxxx Xxxxx, Xxxxxx X.
Xxxxxxxx, Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxxxx
X. Xxxxx, Xxxxxx Xxxxxx Xxx 1998 Irrevocable Trust,
Xxxxxxx Xxxxxxx Xxx, Xxxxxxx X. Xxxxxx as Custodian
for Xxxxx Xxxxxx Xxx, Xxxxxxx X. Xxxxxx, Xxxxx Xxxxxx,
THL Charitable Investment, L.P., THL-CCI Investors
Limited Partnership
c/o the Xxxxxx X. Xxx Company
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: X. Xxxxxx Xxxx
Fax: 000-000-0000
