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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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METRIS COMPANIES INC.
(Exact name of registrant as specified in its charter)
Delaware 41-1849591
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
600 South Highway 169, Suite 1800
St. Louis Park, Minnesota 55426
(Address of Principal Executive Offices) (Zip Code)
METRIS COMPANIES INC. ANNUAL INCENTIVE BONUS PLAN -
DESIGNATED CORPORATE OFFICERS
METRIS COMPANIES INC. MANAGEMENT STOCK PURCHASE PLAN
(Full titles of the plans)
Copy to:
Z. Jill Barclift, Esq. Elizabeth C. Hinck, Esq.
Executice Vice President, Dorsey & Whitney LLP
Secretary and General Counsel Pillsbury Center South
Metris Companies Inc. 220 South Sixth Street
600 South Highway 169, Suite 1800 Minneapolis, Minnesota 55402
St. Louis Park, Minnesota 55426
(Name and address of agent for service)
(612) 525-5020
(Telephone number, including area code, of agent for service)
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================
Title of securities to be Amount to be offering price per aggregate offering registration
registered registered share(1) price fee
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value, to be
issued pursuant to the Plans (2) 600,000 shares $30.9675 $18,580,500 $4,905.26
Plan Interests (3) (3) (3) (3) (3)
==================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and based on the average of the high and low prices for
shares of the registrant's Common Stock on the New York Stock Exchange on
November 23, 1999.
(2) This registration statement registers the number of shares of Common Stock
indicated for each of the following plans: Metris Companies Inc. Annual
Incentive Bonus Plan - Designated Corporate Officers (300,000) and Metris
Companies Inc. Management Stock Purchase Plan (300,000).
(3) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plans described herein.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents that have been filed by Metris Companies Inc. (the
"Company") with the Securities and Exchange Commission are incorporated by
reference in this Registration Statement, as of their respective dates:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, June 30 and September 30, 1999; and the Company's Current
Reports on Form 8-K dated June 22, 1999 and November 15, 1999;
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, dated April 26, 1999,
and any amendment or reports filed for the purpose of updating such
description filed subsequent to the date of this Registration
Statement and prior to the termination of the offering described
herein.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date
of this Registration Statement and 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 into this Registration Statement and to be a part
hereof from the respective dates of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
The description of the Company's capital stock to be offered pursuant to
this Registration Statement has been incorporated by reference into this
Registration Statement as described in Item 3 of this Part II.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("DGCL") empowers a
Delaware corporation to indemnify any persons who are, or are threatened to be
made, parties to any threatened, pending or completed legal action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation), by reason of the fact that
such person was an officer or director of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided that such officer or director acted in good faith and in a
manner he reasonably believed to be in or not opposed to the corporation's best
interests, and, for criminal proceedings, had no reasonable cause to believe his
conduct was illegal. A Delaware corporation may indemnify officers and directors
in an action by or in the right of the corporation under the same conditions,
except that no indemnification is permitted without judicial approval if the
officer or director is adjudged to be liable to the corporation in the
performance of his duty. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such officer or
director actually and reasonably incurred.
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In accordance with the DGCL, the Certificate of the Company contains a
provision to limit the personal liability of the directors of the Company for
violations of their fiduciary duty. This provision eliminates each director's
liability to the Company or its stockholders for monetary damages except to the
extent provided by the DGCL (1) for any breach of the director's duty of loyalty
to the Company or its stockholders, (2) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (3) under
section 174 of the DGCL providing for liability of directors for unlawful
payment of dividends or unlawful stock purchases or redemptions, or (4) for any
transaction from which a director derived an improper benefit. The effect of
this provision is to eliminate the personal liability of directors for monetary
damages for actions involving a breach of their fiduciary duty of care,
including any such actions involving gross negligence. The Certificate and the
By-laws of the Company provide for indemnification of the Company's officers and
directors to the fullest extent permitted by applicable law.
In addition, the Company has additional insurance policies which may
provide coverage for its officers and directors in certain situations where the
Company cannot directly indemnify such officers or directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit
Number Description
------- -----------
4.1 Amended and Restated Certificate of Incorporation of the
Company, as amended (incorporated by reference to Exhibit
3.1 to the Registrant's Registration Statement on Form 8-A,
dated April 26, 1999, Registration No. 001-12351).
4.2 Amended and Restated Bylaws of the Company (incorporated by
reference to Exhibit 3.1 to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1999,
File No. 001-12351).
4.3 Form of Common Stock Certificate of the Company.
5.1 Opinion of Dorsey & Whitney LLP.
23.1 Consent of KPMG LLP, Independent Public Accountants.
23.2 Consent of Dorsey & Whitney LLP (included in Exhibit 5.1).
24.1 Power of Attorney.
ITEM 9. UNDERTAKINGS
A. Post-Effective Amendments
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:
(a) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
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(b) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) under the Securities
Act of 1933 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
(c) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
registration statement.
Provided, however, that paragraphs (1)(a) and (1)(b) of this section
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
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 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 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. Subsequent Documents Incorporated by Reference
The 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 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. Claims for Indemnification
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 or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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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 St. Louis Park, State of Minnesota, on December 1,
1999.
METRIS COMPANIES INC.
By /s/ Ronald N. Zebeck
-------------------------------------
Ronald N. Zebeck
President, Chief Executive
Officer and Director
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.
By /s/ Ronald N. Zebeck Dated: December 1, 1999
-----------------------------------------
Ronald N. Zebeck
President, Chief Executive
Officer and Director
(Principal Executive Officer)
By /s/ David D. Wesselink Dated: December 1, 1999
-----------------------------------------
David D. Wesselink
Executive Vice President,
Chief Financial Officer
(Principal Financial Officer)
By /s/ Jean C. Benson Dated: December 1, 1999
-----------------------------------------
Jean C. Benson
Senior Vice President, Finance,
Corporate Controller
(Principal Accounting Officer)
By *
-----------------------------------------
Theodore Deikel
Chairman of the Board of Directors
By *
-----------------------------------------
Lee R. Anderson, Sr.
Director
By *
-----------------------------------------
John A. Cleary
Director
By *
-----------------------------------------
Walter M. Hoff
Director
By *
-----------------------------------------
Derek V. Smith
Director
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By *
-----------------------------------------
Frank D. Trestman
Director
By *
-----------------------------------------
David V. Harkins
Director
By *
-----------------------------------------
C. Hunter Boll
Director
By *
-----------------------------------------
Thomas M. Hagerty
Director
By *
-----------------------------------------
Thomas H. Lee
Director
*By /s/ Z. Jill Barclift Dated: December 1, 1999
-----------------------------------------
Z. Jill Barclift, Esq. or
David D. Wesselink
Attorney-in-Fact
Pursuant to the requirements of the Securities Act of 1933, the trustees
(or other persons who administer the Metris Companies Inc. Annual Incentive
Bonus Plan - Designated Corporate Officers) have duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of St. Louis Park, State of Minnesota, on December 1,
1999.
METRIS COMPANIES INC. ANNUAL INCENTIVE
BONUS PLAN - DESIGNATED CORPORATE OFFICERS
By /s/ David D. Wesselink
----------------------------------------
David D. Wesselink
Executive Vice President, Chief Financial
Officer
(Principal Financial Officer)
Pursuant to the requirements of the Securities Act of 1933, the trustees
(or other persons who administer the Metris Companies Management Stock Purchase
Plan) have duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of St. Louis Park, State
of Minnesota, on December 1, 1999.
METRIS COMPANIES INC. MANAGEMENT STOCK
PURCHASE PLAN
By /s/ David D. Wesselink
----------------------------------------
David D. Wesselink
Executive Vice President, Chief Financial
Officer
(Principal Financial Officer)
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EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
4.1 Amended and Restated Certificate of Incorporation of the Company, as
amended (incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form 8-A, dated April 26, 1999, Registration
No. 001-12351).
4.2 Amended and Restated Bylaws of the Company (incorporated by reference
to Exhibit 3.1 to the Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999, File No. 001-12351).
4.3 Form of Common Stock Certificate of the Company.
5.1 Opinion of Dorsey & Whitney LLP.
23.1 Consent of KPMG LLP, Independent Public Accountants.
23.2 Consent of Dorsey & Whitney LLP (included in Exhibit 5.1).
24.1 Power of Attorney.
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EXHIBIT 4.3
COMMON STOCK COMMON STOCK
[GRAPHIC:ENGRAVED VIGNETTE]
NUMBER SHARES
- ------ ------
CUSIP 591598 10 7
THIS CERTIFICATE IS TRANSFERABLE IN SEE REVERSE SIDE
CHICAGO, ILLINIOS, OR NEW YORK, NEW YORK FOR DEFINITIONS
METRIS COMPANIES INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
This Certifies that
Is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF $.01 EACH OF THE COMMON
STOCK OF
Metris Companies Inc., transferable on the books of the Corporation by the
holder hereof in person or by authorized attorney on surrender of this
Certificate properly endorsed. This Certificate and the shares represented
hereby are issued and shall be held subject to all the provisions of the
Certificate of Incorporation of the Corporation and all amendments thereto,
copies of which are on file with the Transfer Agent, to all of which the holder,
by acceptance hereof, assents. This Certificate is not valid unless
countersigned and registered by the Transfer Agent and Registrar.
Witness the facsimile signatures of its duly authorized officers.
Dated:
[METRIS LOGO] /s/ SECRETARY [SEAL] /s/ PRESIDENT AND CHIEF
EXECUTIVE OFFICER
COUNTERSIGNED AND REGISTERED:
HARRIS TRUST AND SAVINGS BANK
(CHICAGO)
TRANSFER AGENT AND REGISTRAR
BY
AUTHORIZED SIGNATURE
<PAGE>
The Corporation shall furnish upon request and without charge, a full statement
of the designations, preferences, limitations, and relative rights of the Common
Stock and the Preferred Stock authorized to be issued, so far as they have been
determined, and a full statement of the authority of the Board of Directors of
the Corporation to determine the relative rights and preferences of subsequently
authorized and issued classes or series. Any such request should be addressed to
the Secretary of the Corporation at its principal office or to the Transfer
Agent.
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT- ___________
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with right Custodian____________
of survivorship and not as (Minor)
tenants in common under Uniform Gifts to Minors
Act ______________________
(State)
Additional abbreviations may also be used though not on the above list.
For Value received, ________________________________ hereby sell, assign and
transfer unto
PLEASE INSERT SOCIAL SECURITY NUMBER OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
[ ]
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING ZIP CODE OF ASSIGNEE)
_________________________________________________________________________ Shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
_______________________________________________________________________ Attorney
to transfer the said stock on the books of the within-named Corporation with
full power of substitution in the premises.
Dated, ______________________
-------------------------
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND
WITH THE NAME AS WRITTEN UPON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION
OR ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED: ___________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE
GAURANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS
AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE
MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
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EXHIBIT 5.1
December 1, 1999
Metris Companies Inc.
600 South Highway 169
Suite 1800
St. Louis Park, MN 55426
Ladies and Gentlemen:
We have acted as counsel to Metris Companies Inc., a Delaware corporation
(the "Company"), in connection with a Registration Statement on Form S-8
relating to the sale by the Company from time to time of up to 600,000 shares of
Common Stock, $.01 par value per share, of the Company (the "Shares"), issuable
pursuant to awards granted under the Company's Annual Incentive Bonus Plan -
Designated Corporate Officers (300,000) and the Management Stock Purchase Plan
(300,000), (collectively, the "Plans").
We have examined such documents and have reviewed such questions of law as
we have considered necessary and appropriate for the purposes of the opinions
set forth below.
In rendering our opinions set forth below, we have assumed the authenticity
of all documents submitted to us as originals, the genuineness of all signatures
and the conformity to authentic originals of all documents submitted to us as
copies. We have also assumed the legal capacity for all purposes relevant hereto
of all natural persons and, with respect to all parties to agreements or
instruments relevant hereto other than the Company, that such parties had the
requisite power and authority (corporate or otherwise) to execute, deliver and
perform such agreements or instruments, that such agreements or instruments have
been duly authorized by all requisite action (corporate or otherwise), executed
and delivered by such parties and that such agreements or instruments are the
valid, binding and enforceable obligations of such parties. As to questions of
fact material to our opinions, we have relied upon certificates of officers of
the Company and of public officials.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, upon issuance, delivery and payment therefor in accordance
with the terms of the Plans, will be validly issued, fully paid and
nonassessable.
Our opinions expressed above are limited to the Delaware General
Corporation Law.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Dorsey & Whitney LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
Metris Companies Inc.:
We consent to the use of our report incorporated herein by reference in the
Registration Statement.
/s/ KPMG LLP
KPMG LLP
Minneapolis, Minnesota
December 1, 1999
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EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints each of Z. Jill Barclift, Esq. and
David D. Wesselink his or her true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign a Registration Statement on Form
S-8 relating to the Metris Companies Inc. Annual Incentive Bonus Plan -
Designated Corporate Officers and the Metris Companies Inc. Management Stock
Purchase Plan (collectively, the "Plans"), with respect to shares of Common
Stock of Metris Companies Inc. to be issued under the Plans and any and all
amendments thereto, including post-effective amendments, and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission and any necessary state securities
commissions or other agencies, granting unto said attorney-in-fact and agent,
full power and authority to do and perform to all intents and purposes as he or
she might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or the substitutes for such attorney-in-fact and
agent, duly lawfully do or cause to be done by virtue hereof.
Signature Date
--------- ----
By /s/ Theodore Deikel November 30, 1999
--------------------------------
Theodore Deikel
Director
By /s/ Lee R. Anderson November 15, 1999
--------------------------------
Lee R. Anderson
Director
By /s/ John A. Cleary November 17, 1999
--------------------------------
John A. Cleary
Director
By /s/ Walter M. Hoff November 30, 1999
--------------------------------
Walter M. Hoff
Director
By /s/ Derek V. Smith November 30, 1999
--------------------------------
Derek V. Smith
Director
By /s/ Frank D. Trestman November 30, 1999
--------------------------------
Frank D. Trestman
Director
By /s/ David V. Harkins November 30, 1999
--------------------------------
David V. Harkins
Director
By /s/ C. Hunter Boll November 15, 1999
--------------------------------
C. Hunter Boll
Director
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By /s/ Thomas M. Hagerty November 30, 1999
--------------------------------
Thomas M. Hagerty
Director
By /s/ Thomas H. Lee November 16, 1999
--------------------------------
Thomas H. Lee
Director
