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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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 RETIREMENT PLAN
METRIS COMPANIES INC. NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
METRIS COMPANIES INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
Copy to:
Z. Jill Barclift Elizabeth C. Hinck, Esq.
Metris Companies Inc. Dorsey & Whitney LLP
600 South Highway 169, Suite 1800 Pillsbury Center South
St. Louis Park, Minnesota 55426 220 South Sixth Street
(Name and address of agent for service) Minneapolis, Minnesota 55402
(612) 525-5020
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of securities to be Amount to be offering price per aggregate offering registration
registered registered share(1) price fee
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value, to be
issued pursuant to the Plans (2) 1,060,000 shares $60.53125 $64,163,125 $17,838
Plan Interests (3) (3) (3) (3) (3)
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(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 May 7,
1999.
(2) This registration statement registers the number of shares of Common Stock
indicated for each of the following plans: Metris Retirement Plan (60,000),
Metris Companies Inc. Non-Employee Director Stock Option Plan (150,000) and
Metris Companies Inc. Employee Stock Purchase Plan (850,000).
(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 plan 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 Report on Form 10-Q for the quarter ended
March 31, 1999; and
(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 or by the Company's Retirement Plan
(the "Plan") 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.
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 (i) for any breach
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of the director's duty of loyalty to the Company or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under section 174 of the DGCL providing for
liability of directors for unlawful payment of dividends or unlawful stock
purchases or redemptions, or (iv) 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
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Exhibit
Number Description
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<S> <C>
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 3.2 to the Registrant's Annual Report on
Forms 10-K for the year ended December 31, 1998, File No.
001-12351).
5.1 Internal Revenue Service Favorable Determination Letter, dated
October 20, 1998.
5.2 Opinion of Dorsey & Whitney LLP.
23.1 Consent of KPMG Peat Marwick LLP, Independent Public Accountants.
23.2 Consent of Dorsey & Whitney LLP (included in Exhibit 5.2).
24.1 Power of Attorney.
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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:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
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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
(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 (1)(i) and (1)(ii) 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 May 11, 1999.
METRIS COMPANIES INC.
By /s/ Ronald N. Zebeck
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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: May 11, 1999
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Ronald N. Zebeck
President, Chief Executive Officer and Director
(Principal Executive Officer)
By /s/ David D. Wesselink Dated: May 11, 1999
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David D. Wesselink
Executive Vice President, Chief Financial Officer
(Principal Financial Officer)
By /s/ Jean C. Benson Dated: May 11, 1999
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Jean C. Benson
Vice President, Finance, Corporate Controller
(Principal Accounting Officer)
By *
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Lee R. Anderson, Sr.
Director
By *
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John A. Cleary
Director
By *
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Theodore Deikel
Director
By *
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Dudley C. Mecum
Director
By *
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Derek V. Smith
Director
By *
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Frank D. Trestman
Director
* By /s/ Z. Jill Barclift
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Z. Jill Barclift or David D. Wesselink Dated: May 11, 1999
Attorney-in-Fact
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Plan 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 May 11, 1999.
METRIS COMPANIES INC.
RETIREMENT PLAN
By: Metris Companies Inc.
By /s/ Ronald N. Zebeck
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Ronald N. Zebeck
Its: President, Chief Executive
Officer and Director
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EXHIBIT INDEX
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Exhibit Number Description
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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 3.2 to the Annual Report on Forms 10-K
for the year ended December 31, 1998, File No. 001-12351).
5.1 Internal Revenue Service Favorable Determination Letter, dated
October 20, 1998.
5.2 Opinion of Dorsey & Whitney LLP.
23.1 Consent of KPMG Peat Marwick LLP, Independent Public
Accountants.
23.2 Consent of Dorsey & Whitney LLP (included in Exhibit 5.2).
24.1 Power of Attorney.
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Exhibit 5.1
INTERNAL REVENUE SERVICE
DISTRICT DIRECTOR
P. O. BOX 2508
CINCINNATI, OH 45201
Date: October 20, 1998 Employer Identification Number:
41-1111974
METRIS COMPANIES INC. DLN:
INTERCHANGE TOWER, SUITE 300 7007082010048
C/O AILEEN TORRANCE, Person to Contact:
DORSEY & WHITNEY CINDY PERRY
PILLSBURY CENTER SOUTH Contact Telephone Number:
220 SOUTH SIXTH STREET (877) 829-5500
MINNEAPOLIS, MN 55402-1498 Plan Name:
METRIS RETIREMENT PLAN
Plan Number: 001
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your permanent
records.
Continued qualification of the plan under its present form will depend
on its effect in operation. (See section 1.401(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some events that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other federal
or local statutes.
This determination is subject to your adoption of the proposed
amendments submitted in your letter dated October 3, 1998. The proposed
amendments should be adopted on or before the date prescribed by the regulations
under Code section 401(b).
This determination is applicable for the amendment(s) executed on
February 3, 1998.
This plan has been mandatorily disaggregated, permissively aggregated,
or restructured to satisfy the nondiscrimination requirements.
This plan satisfies the nondiscrimination in amount requirement of
section 1.401(a)(4)-1(b)(2) of the regulations on the basis of a design-based
safe harbor described in the regulations.
This plan satisfies the nondiscriminatory current availability
requirements of section 1.401(a)(4)-4(b) of the regulations with respect to
those benefits, rights and features that are currently available to all
employees in the plan's coverage group. For this purpose, the plan's coverage
group consists of those employees treated as currently benefitting for purposes
of demonstrating that the plan satisfies the minimum coverage requirements of
section 410(b) of the Code.
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Based on the information supplied, we have determined that your plan
meets the requirements of section 401 (k) of the Internal Revenue Code.
This letter considers the amendments required by the Tax Reform of 1986,
except as otherwise specified in this letter.
Except as otherwise specified, this letter may not be relied upon with
respect to whether the plan satisfies the changes in the qualification
requirements made by the Uruguay Round Amendments Act (GATT) Pub. L. 103-465,
the Taxpayer Relief Act of 1997 Pub. L. 105-34, and the changes in the
qualification requirements of the Small Business Job Protection Act of 1996 Pub.
L. 104-188 other than the requirements of Code section 401(a)(26).
The information on the enclosed Publication 794 is an integral part of
this determination. Please be sure to read and keep it with this letter.
The requirement for employee benefits plans to file summary plan
descriptions (SPD) with the U.S. Department of Labor was eliminated effective
August 5, 1997. For more details, call 1-800-998-7542 for a free copy of the
SPD card.
We have sent a copy of this letter to your representative as indicated in
the power of attorney.
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
/s/ Paul M. Harrington
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
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Exhibit 5.2
[Dorsey & Whitney LLP Letterhead]
May 11, 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 1,000,000
shares of Common Stock, $.01 par value per share, of the Company (the "Shares"),
issuable pursuant to awards granted under the Company's Non-Employee Director
Stock Option Plan (150,000) and the Employee Stock Purchase Plan (850,000),
(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 laws of the State of
Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Dorsey & Whitney LLP
ECH
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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 Peat Marwick LLP
KPMG Peat Marwick LLP
Minneapolis, Minnesota
May 11, 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 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' Retirement Plan, the Metris Companies Inc.
Non-Employee Director Stock Option Plan and the Metris Companies Inc. Employee
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
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By /s/ Lee R. Anderson May 11, 1999
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Lee R. Anderson
Director
By /s/ John A. Cleary May 11, 1999
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John A. Cleary
Director
By /s/ Theodore Deikel May 11, 1999
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Theodore Deikel
Director
By /s/ Dudley C. Mecum May 11, 1999
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Dudley C. Mecum
Director
By /s/ Derek V. Smith May 11, 1999
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Derek V. Smith
Director
By /s/ Frank D. Trestman May 11, 1999
-------------------------------------
Frank D. Trestman
Director
