SECURITIES AND
EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13
or 15(d)
of the Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported): March 3, 2005
Encore Capital Group,
Inc.
(Exact Name of Registrant as Specified in its Charter)
| Delaware | 000-26489 | 48-1090909 | ||
|---|---|---|---|---|
| (State or other jurisdiction of incorporation or organization) |
(Commission File Number) | (I.R.S Employer Identification No.) | ||
8875 Aero Drive, Suite 200
San Diego, California
92123
(Address of Principal
Executive Offices) (Zip Code)
(877) 445-4581
(Registrant’s
Telephone Number, Including Area Code)
Item 2.02. Results of Operations and Financial Condition
On March 3, 2005, the Company issued a press release announcing its unaudited financial results for the fourth quarter ended December 31, 2004. A copy of the press release is attached to this Current Report on Form 8-K as Exhibit 99.1 and is incorporated herein solely for purposes of Item 2.02.
The press release attached to this Current Report on Form 8-K as Exhibit 99.1 contains financial measures for income before taxes, net income, fully diluted earnings per share and cash flow from operations excluding one-time benefit that are not calculated in accordance with generally accepted accounting principles in the United States (“GAAP”). The Company has provided a reconciliation in the press release attached to this Current Report on Form 8-K as Exhibit 99.1 of the non-GAAP financial measures for income before taxes, net income, fully diluted earnings per share and cash flow from operations excluding one-time benefit to GAAP income before taxes, net income, fully diluted earnings per share and cash flow from operations.
Management believes that these non-GAAP financial measures provide useful information to investors about the Company’s results of operations because the elimination of one-time benefit that is included in the GAAP financial measures results in enhanced comparability of certain key financial results between the periods presented.
The information provided in this Current Report on Form 8-K pursuant to Item 2.02, including the exhibit, shall not be deemed “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities under that Section. Furthermore, the information provided in this Current Report on Form 8-K pursuant to Item 2.02, including the exhibit, shall not be deemed to be incorporated by reference into the filings of Encore Capital Group, Inc. under the Securities Act of 1933.
Item 9.01 Financial Statements and Exhibits
(c) Exhibits
| 3.1 | Bylaws, as amended. |
| 99.1 | Press release dated March 3, 2005. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| ENCORE CAPITAL GROUP, INC. | ||
| Date: March 3, 2005 | By /s/ Barry R. Barkley —————————————— Barry R. Barkley Executive Vice President, Chief Financial Officer and Treasurer |
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EXHIBIT INDEX
| Exhibit | Description |
| 3.1 | Bylaws, as amended. |
| 99.1 | Press release dated March 3, 2005. |
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EXHIBIT 3.1
BYLAWS
OF
ENCORE CAPITAL GROUP,
INC.
As amended through
March 1, 2005
I. REFERENCES TO CERTAIN TERMS AND CONSTRUCTION
1.01. Certain References. Any reference herein made to law will be deemed to refer to the law of the State of Delaware, including any applicable provision of Chapter 1 of Title 8 of the Delaware Code, or any successor statutes, as from time to time amended and in effect (sometimes referred to herein as the “Delaware General Corporation Law”). Any reference herein made to the corporation’s Certificate will be deemed to refer to its Certificate of Incorporation and all amendments thereto as at any given time on file with the Delaware Secretary of State (any reference herein to that office being intended to include any successor to the incorporating and related functions being performed by that office at the date of the initial adoption of these Bylaws). Except as otherwise required by law, the term “stockholder” as used herein shall mean one who is a holder of record of shares of the corporation.
1.02. Seniority. The law and the Certificate (in that order of precedence) will in all respects be considered senior and superior to these Bylaws, with any inconsistency to be resolved in favor of the law and such Certificate (in that order of precedence), and with these Bylaws to be deemed automatically amended from time to time to eliminate any such inconsistency which may then exist.
1.03. Computation of Time. The time during which an act is required to be done, including the time for the giving of any required notice herein, shall be computed by excluding the first day or hour, as the case may be, and including the last day or hour.
II. OFFICES
2.01. Principal Office. The principal office or place of business of the corporation in the State of Delaware shall be the registered office of the corporation in the State of Delaware. The corporation may change its registered office from time to time in accordance with the relevant provisions of the Delaware General Corporation Law. The corporation may have such other offices, either within or without the State of Delaware, as the Board of Directors may designate or as the business of the corporation may require from time to time.
III. STOCKHOLDERS
3.01. Annual Stockholder Meeting. The annual meeting of stockholders shall be held on such date and at such time as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting, at which meetings the stockholders shall elect by a plurality vote members of the Board of Directors and transact such other business as may properly be brought before the meeting.
3.02. Special Stockholder Meetings. Unless otherwise prescribed by law or by the Certificate of Incorporation, special meetings of stockholders, for any purpose or purposes, may be called by the Chairman of the Board (or in his or her absence, the Vice Chairman) or the Chief Executive Officer, and shall be called by the Chief Executive Officer or the Secretary upon a written request signed by at least three members of the Board of Directors, or of the holders of at least a majority of the issued and outstanding shares of capital stock entitled to vote thereat. Any such written request by stockholders shall state the purpose or purposes of the proposed meeting, and business to be transacted at any such meeting shall be confined to the purposes stated in the notice thereof and to such additional matters as the chairman of the meeting may rule to be germane to such purposes.
3.03. Notice of Stockholders Meetings.
(a) Required Notice. Except as otherwise allowed or required by law, written notice stating the place, day and hour of any annual or special stockholders meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting and to any other stockholder entitled to receive notice of the meeting by law or the Certificate. Such notice may be given either personally or by sending a copy thereof through the mail, by telegraph, by private delivery service (including overnight courier), or by facsimile transmission, charges prepaid, to each stockholder at his/her address as it appears on the records of the corporation. If the notice is sent by mail, by telegraph or by private delivery service, it shall be deemed to have been given to the person entitled thereto when deposited in the United States mail or with a telegraph office or private delivery service for transmission to such person. If the notice is sent by facsimile transmission, it shall be deemed to have been given upon transmission, if transmission occurs on a business day before 5:00 p.m. at the place of receipt, and upon the business day following transmission, if transmission occurs after 5:00 p.m.
(b) Adjourned Meeting. If any stockholders meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time, and place, if the new date, time, and place are announced at the meeting at which the adjournment is taken. But if the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, then notice of the adjourned meeting shall be given to each stockholder of record entitled to such notice pursuant to Section 3.03(a) above.
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(c) Waiver of Notice. Any stockholder may waive notice of a meeting (or any notice of any other action required to be given by the Delaware General Corporation Law, the corporation’s Certificate, or these Bylaws), at any time before, during, or after the meeting or other action, by a writing signed by the stockholder entitled to the notice. Each such waiver shall be delivered to the corporation for inclusion in the minutes or filing with the corporate records. Attendance of a stockholder at a meeting shall constitute a waiver of notice of the meeting, except when the stockholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.
(d) Contents of Notice. The notice of each special stockholders meeting shall include a description of the purpose or purposes for which the meeting is called. Except as required by law or the corporation’s Certificate, the notice of an annual stockholders meeting need not include a description of the purpose or purposes for which the meeting is called.
3.04. Fixing of Record Date. For the purpose of determining stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or in order to make a determination of stockholders for any other proper purpose, the Board of Directors may fix a date as the record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors. In the case of determining stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, such record date shall not be more than sixty (60) days nor less than ten (10) days prior to the date of such meeting. In the case of determining stockholders entitled to consent to corporate action in writing without a meeting, the record date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. In the case of determining stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the record date shall be not more than sixty (60) days prior to such action. If no record date is so fixed by the Board of Directors, the record date for the determination of stockholders shall be as provided in the Delaware General Corporation Law.
When a determination of stockholders entitled to notice of or to vote at any meeting of stockholders has been made as provided in this Section, such determination shall apply to any adjournment thereof, unless the Board of Directors fixes a new record date.
3.05. Stockholder List. The officer who has charge of the stock ledger of the corporation shall make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address and the number of shares held by each. The stockholder list shall be available for inspection by any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting at a place within the city where the meeting is to be held, which place shall be specified in the meeting notice, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Except as otherwise provided by law, failure to comply with this section shall not affect the validity of any action taken at the meeting.
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3.06. Stockholder Quorum and Voting Requirements. Unless otherwise provided in the Certificate or these Bylaws or required by law,
(a) a majority of the shares entitled to vote, present in person or represented by proxy, shall constitute a quorum at a meeting of stockholders;
(b) in all matters other than the election of directors, the affirmative vote of the majority of shares voting for or against the subject matter shall be the act of the stockholders;
(c) directors shall be elected by a plurality of the votes cast at the meeting; and
(d) where a separate vote by a class or classes is required, a majority of the outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on that matter and the affirmative vote of the majority of shares of such class or classes present in person or represented by proxy at the meeting shall be the act of such class.
Except as provided below, voting will be by ballot on any question as to which a ballot vote is demanded prior to the time the voting begins by any person entitled to vote on such question; otherwise, a voice vote will suffice. Unless otherwise provided in the Certificate, all elections of directors will be by written ballot. No ballot or change of vote will be accepted after the polls have been declared closed following the ending of the announced time for voting.
3.07. Proxies. At all meetings of stockholders, a stockholder may vote in person or by proxy duly executed in writing by the stockholder or the stockholder’s duly authorized attorney-in-fact. Such proxy shall comply with law and shall be filed with the Secretary of the corporation or other person authorized to tabulate votes before or at the time of the meeting. No proxy shall be valid after three (3) years from the date of its execution unless otherwise provided in the proxy. The burden of proving the validity of any undated, irrevocable, or otherwise contested proxy at a meeting of the stockholders will rest with the person seeking to exercise the same. A facsimile appearing to have been transmitted by a stockholder or by such stockholder’s duly authorized attorney-in-fact may be accepted as a sufficiently written and executed proxy.
3.08. Voting of Shares. Unless otherwise provided in the Certificate or the Delaware General Corporation Law, each outstanding share entitled to vote shall be entitled to one (1) vote upon each matter submitted to a vote at a meeting of stockholders.
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3.09. Election Inspectors. The Board of Directors, in advance of any meeting of the stockholders, may appoint an election inspector or inspectors to act at such meeting (and at any adjournment thereof). If an election inspector or inspectors are not so appointed, the chairman of the meeting may, or upon request of any person entitled to vote at the meeting will, make such appointment. If any person appointed as an inspector fails to appear or to act, a substitute may be appointed by the chairman of the meeting. If appointed, the election inspector or inspectors (acting through a majority of them if there be more than one) will determine the number of shares outstanding, the authenticity, validity, and effect of proxies, the credentials of persons purporting to be stockholders or persons named or referred to in proxies, and the number of shares represented at the meeting in person and by proxy; will receive and count votes, ballots, and consents and announce the results thereof; will hear and determine all challenges and questions pertaining to proxies and voting; and, in general, will perform such acts as may be proper to conduct elections and voting with complete fairness to all stockholders. No such election inspector need be a stockholder of the corporation.
3.10. Organization and Conduct of Meetings. Each meeting of the stockholders will be called to order and thereafter chaired by the Chairman of the Board of Directors if there is one, or, if not, or if the Chairman of the Board is absent or so requests, then by the Vice Chairman or the Chief Executive Officer, or if both the Chairman and Vice Chairman of the Board and the Chief Executive Officer are unavailable, then by such other officer of the corporation or such stockholder as may be appointed by the Board of Directors. The corporation’s Secretary or in his or her absence, an Assistant Secretary will act as secretary of each meeting of the stockholders. If neither the Secretary nor an Assistant Secretary is in attendance, the chairman of the meeting may appoint any person (whether a stockholder or not) to act as secretary for the meeting. After calling a meeting to order, the chairman thereof may require the registration of all stockholders intending to vote in person and the filing of all proxies with the election inspector or inspectors, if one or more have been appointed (or, if not, with the secretary of the meeting). After the announced time for such filing of proxies has ended, no further proxies or changes, substitutions, or revocations of proxies will be accepted. If directors are to be elected, a tabulation of the proxies so filed will, if any person entitled to vote in such election so requests, be announced at the meeting (or adjournment thereof) prior to the closing of the election polls. Absent a showing of bad faith on his or her part, the chairman of a meeting will, among other things, have absolute authority to fix the period of time allowed for the registration of stockholders and the filing of proxies, to determine the order of business to be conducted at such meeting, and to establish reasonable rules for expediting the business of the meeting and preserving the orderly conduct thereof (including any informal, or question and answer portions thereof).
3.11. Stockholder Approval or Ratification. The Board of Directors may submit any contract or act for approval or ratification of the stockholders at a duly constituted meeting of the stockholders. Except as otherwise required by law, if any contract or act so submitted is approved or ratified by a majority of the votes cast thereon at such meeting, the same will be valid and as binding upon the corporation and all of its stockholders as it would be if it were the act of its stockholders.
3.12. Informalities and Irregularities. All informalities or irregularities in any call or notice of a meeting of the stockholders or in the areas of credentials, proxies, quorums, voting, and similar matters, will be deemed waived if no objection is made at the meeting.
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3.13. Stockholder Action by Written Consent. Any action required or permitted to be taken at a meeting of the stockholders may be taken without a meeting if one (1) or more consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Each consent shall bear the date of signature of each stockholder who signs the consent. The consents shall be delivered to the corporation in accordance with law for inclusion in the minutes or filing with the corporate record. Prompt notice of the taking of corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented to the action.
3.14. Nomination of Directors. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the corporation. Nominations of persons for election to the Board of Directors may be made at any annual meeting of stockholders (a) by or at the direction of the Board of Directors (or any duly authorized commit tee thereof) or (b) by any stockholder of the corporation (i) who is a stockholder of record on the date of the giving of the notice provided for in this Section 3.14 and on the record date for the determination of stockholders entitled to vote at such annual meeting and (ii) who complies with the notice procedures set forth in this Section 3.14.
In addition to any other applicable requirements, for a nomination to be made by a stock holder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the corporation, as prescribed below.
No person shall be elected to the Board of Directors of this corporation at an annual meeting of the stockholders, or at a special meeting called for that purpose, unless, with respect to a person nominated by a stockholder of the corporation, a written notice of nomination of such person by the stockholder shall have been received by the Secretary of the corporation not earlier than one hundred and twenty (120) days and not later than ninety (90) days prior to the anniversary date of the immediately preceding annual meeting if an annual meeting, or seven (7) days after notice of the meeting is mailed to stockholders if a special meeting. Each such notice shall set forth: (a) the name and address of the stockholder who intends to make the nomination and of the person or persons to be nominated; (b) a representation that the stockholder is a holder of record of stock of the corporation entitled to vote at such meeting (including the number of shares of stock of the corporation owned beneficially or of record by such stockholder and the nominee or nominees) and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; (c) a description of all arrangements or understandings between the stockholders and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the stockholder; (d) such other information regarding each nominee proposed by such stockholder as would have been required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission had each nominee been nominated, or intended to be nominated, by the Board of Directors; and (e) the consent of each nominee to serve as a director of the corporation if so elected.
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No person shall be eligible for election as a director of the corporation unless nominated in accordance with the procedures set forth in this Section 3.14. If the chairman of the meeting determines that a nomination was not made in accordance with the foregoing procedures, the chairman shall declare to the meeting that the nomination was defective and such defective nomination shall be disregarded.
Notwithstanding compliance with the foregoing provisions, the Board of Directors shall not be obligated to include information as to any stockholder nominee for director in any proxy statement or other communication sent to stockholders.
3.15. Business at Annual Meetings. No business may be transacted at an annual meeting of stockholders, other than business that is either (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors (or any duly authorized committee thereof), (b) otherwise properly brought before the annual meeting by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (c) otherwise properly brought before the annual meeting by any stockholder of the corporation (i) who is a stock holder of record on the date of the giving of the notice provided for in this Section 3.15 and on the record date for the determination of stockholders entitled to vote at such annual meeting and (ii) who complies with the notice procedures set forth in this Section 3.15.
In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the corporation.
To be timely, a stockholder’s notice to the Secretary must be delivered to or mailed and received at the principal executive offices of the Company not earlier than one hundred and twenty (120) days and not later than ninety (90) days prior to the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is called for a date that is not within thirty (30) days before or after such anniversary date, notice by the stockholder in order to be timely must be so received not later than the close of business on the tenth day following the day on which such notice of the date of the annual meeting was mailed or such public disclosure of the date of the annual meeting was made, whichever first occurs.
To be in proper written form, a stockholder’s notice to the Secretary must set forth as to each matter such stockholder proposes to bring before the annual meeting (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and record address of such stockholder, (iii) the class or series and number of shares of capital stock of the corporation that are owned beneficially or of record by such stockholder, (iv) a description of all arrangements or understandings between such stockholder and any other person or persons (including their names) in connection with the proposal of such business by such stockholder and any material interest of such stockholder in such business and (v) a representation that such stockholder intends to appear in person or by proxy at the annual meeting to bring such business before the meeting.
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No business shall be conducted at the annual meeting of stockholders except business brought before the annual meeting in accordance with the procedures set forth in this Section 3.15, provided, however, that, once business has been properly brought before the annual meeting in accordance with such procedures, nothing in this Section 3.15 shall be deemed to preclude discussion by any stockholder of any such business. If the chairman of an annual meeting determines that business was not properly brought before the annual meeting in accordance with the foregoing procedures, the chairman shall declare to the meeting that the business was not properly brought before the meeting and such business shall not be transacted.
IV. BOARD OF DIRECTORS
4.01. General Powers. The business and affairs of the corporation shall be managed by or under the direction of the Board of Directors.
4.02. Number, Tenure, and Qualification of Directors. Unless otherwise provided in the Certificate, the authorized number of directors shall be not less than one nor more than nine. The number of directors in office from time to time shall be within the limits specified above, as prescribed initially in the Certificate, or by the incorporator or incorporators of the corporation, or by the initial director or directors of the corporation and thereafter as prescribed from time to time by resolution adopted by either the stockholders or by the Board of Directors upon the affirmative vote of a majority of the directors then in office. The Board of Directors, upon the affirmative vote of a majority of the directors then in office, shall have the power to increase or decrease its size within the aforesaid limits and to fill any vacancies that may occur in its membership, whether resulting from an increase in the size of the Board or otherwise. Each director shall hold office until his or her successor shall have been duly elected and qualified or until his or her earlier resignation or removal. Unless required by the Certificate, directors do not need to be residents of the State of Delaware or stockholders of the corporation.
4.03. Regular Meetings of the Board of Directors. A regular annual meeting of the Board of Directors is to be held as soon as practicable after the adjournment of each annual meeting of the stockholders, either at the place of the stockholders meeting or at such other place as the directors elected at the stockholders meeting may have been informed of at or prior to the time of their election. Additional regular meetings may be held at regular intervals at such places and at such times as the Board of Directors may determine.
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4.04. Special Meetings of the Board of Directors. Special meetings of the Board of Directors may be held whenever and wherever called for by the Chairman of the Board, the Vice Chairman of the Board, the Chief Executive Officer, or the number of directors that would be required to constitute a quorum.
4.05. Notice of, and Waiver of Notice for, Directors Meetings. No notice need be given of regular meetings of the Board of Directors. Notice of the time and place (but not necessarily the purpose or all of the purposes) of any special meeting will be given to each director in person or by telephone, or via mail or facsimile transmission or electronic transmission (which shall include electronic e-mail via the internet). Notice to any director of any such special meeting will be deemed given sufficiently in advance when (i), if given by mail, the same is deposited in the United States mail at least four (4) days before the meeting date, with postage thereon prepaid, (ii), if given by facsimile or electronic transmission, the same is transmitted at least 24 hours prior to the convening of the meeting, or (iii), if personally delivered (including by overnight courier) or given by telephone, the same is handed, or the substance thereof is communicated over the telephone to the director or to an adult member of his or her office staff or household, at least 24 hours prior to the convening of the meeting. Any director may waive notice of any meeting and any adjournment thereof at any time before, during, or after it is held, as provided by law. Except as provided in the next sentence below, the waiver must be (a) in writing, signed by the director entitled to the notice, and filed with the minutes or corporate records, or (b) by electronic transmission identifying the party waiving notice, and printed out in paper form and filed with the minutes or corporate records. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.
4.06. Director Quorum. A majority of the total number of directors then in office shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, unless the Certificate requires a greater number.
4.07. Directors, Manner of Acting.
(a) The affirmative vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors unless the Certificate or these Bylaws require a greater percentage and except as otherwise required by law.
(b) Unless the Certificate provides otherwise, any or all directors may participate in a regular or special meeting by, or conduct the meeting through the use of, conference telephone or similar communications equipment by means of which all persons participating in the meeting may hear each other, in which case any required notice of such meeting may generally describe the arrangements (rather than or in addition to the place) for the holding thereof. A director participating in a meeting by this means is deemed to be present in person at the meeting.
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(c) A director who is present at a meeting of the Board of Directors or a committee of the Board of Directors when corporate action is taken is deemed to have assented to the action taken unless: (1) the director objects at the beginning of the meeting (or promptly upon his/her arrival) to holding it or transacting business at the meeting; or (2) his/her dissent or abstention from the action taken is entered in the minutes of the meeting; or (3) he/she delivers written notice of his/her dissent or abstention to the presiding officer of the meeting before its adjournment or to the corporation before 5:00 p.m. on the next business day after the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken.
4.08. Director Action Without a Meeting. Unless the Certificate provides otherwise, any action required or permitted to be taken by the Board of Directors at a meeting may be taken without a meeting if the action is taken by unanimous written consent of the Board of Directors as evidenced by one (1) or more written consents describing the action taken, signed by each director and filed with the minutes or proceedings of the Board of Directors.
4.09. Removal of Directors by Stockholders. Except as limited by law, to the extent provided in the Certificate, any director or the entire Board of Directors may be removed, with or without cause, by the holders of two-thirds of the shares entitled to vote at an election of directors.
4.10. Board of Director Vacancies. Unless the Certificates provides otherwise and except as otherwise provided by law, any vacancy or newly created directorship may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director.
4.11. Director Compensation. Unless otherwise provided in the Certificate, by resolution of the Board of Directors, each director may be paid his/her expenses, if any, of attendance at each meeting of the Board of Directors or any committee thereof, and may be paid a stated salary as director or a fixed sum for attendance at each meeting of the Board of Directors or any committee thereof, or both. No such payment shall preclude any director from serving the corporation in any capacity and receiving compensation therefor.
4.12. Director Committees.
(a) Creation of Committees. Unless the Certificate provides otherwise, the Board of Directors may create one (1) or more committees and appoint members of the Board of Directors to serve on them. Each committee shall have one (1) or more members, who serve at the pleasure of the Board of Directors.
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(b) Selection of Members. The creation of a committee and appointment of members to it shall be approved by the greater of (1) two-thirds of all the directors in office when the action is taken or (2) the number of directors required by the Certificate to take such action. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he/she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.
(c) Required Procedures. Sections 4.03 through 4.08 of this Article IV, which govern meetings, action without meetings, notice and waiver of notice, and quorum and voting requirements of the Board of Directors, apply to committees and their members.
(d) Authority. Unless limited by the Certificate and except to the extent limited by law, each committee may exercise those aspects of the authority of the Board of Directors which the Board of Directors confers upon such committee in the resolution creating the committee.
4.13. Director Resignations. Any director or committee member may resign from his or her office at any time by written notice delivered to the corporation as required by law. Any such resignation will be effective upon its receipt unless some later time is therein fixed, and then from that time. The acceptance of a resignation will not be required to make it effective.
4.14. Interested Directors. No contract or transaction between the corporation and one or more of its directors or officers, or between the corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because such director’s vote is counted for such purpose if (i) the material facts as to such director’s relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to such director’s relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.
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V. OFFICERS
5.01. Number of Officers. The officers of the corporation shall be a Chief Executive Officer, a President, a Secretary, and a Treasurer, each of whom shall be appointed by the Board of Directors. Such other officers and assistant officers as may be deemed necessary, including any Vice Presidents, may be appointed by the Board of Directors. If specifically authorized by the Board of Directors, an officer may appoint one (1) or more other officers or assistant officers. The same individual may simultaneously hold more than one (1) office in the corporation.
5.02. Appointment and Term of Office. The officers of the corporation shall be appointed by the Board of Directors for a term as determined by the Board of Directors. The designation of a specified term grants to the officer no contract rights, and the Board of Directors can remove the officer at any time prior to the termination of such term. If no term is specified, an officer of the corporation shall hold office until he or she resigns, dies, or until he or she is removed in the manner provided by law or in Section 5.03 of this Article V. The regular election or appointment of officers will take place at each annual meeting of the Board of Directors, but elections of officers may be held at any other meeting of the Board.
5.03. Resignation and Removal of Officers. An officer may resign at any time by delivering written notice to the corporation. A resignation is effective when the notice is delivered unless the notice specifies a later effective date or event. Any officer may be removed by the Board of Directors at any time, with or without cause. Such removal shall be without prejudice to the contract rights, if any, of the person so removed. Appointment of an officer shall not of itself create contract rights.
5.04. Duties of Officers. Officers of the corporation shall have authority to perform such duties as may be prescribed from time to time by law, in these Bylaws, or by the Board of Directors, the Chief Executive Officer, or the superior officer of any such officer. Each officer of the corporation (in the order designated herein or by the Board) will be vested with all of the powers and charged with all of the duties of his or her superior officer in the event of such superior officer’s absence, death, or disability.
5.05. Bonds and Other Requirements. The Board of Directors may require any officer to give bond to the corporation (with sufficient surety and conditioned for the faithful performance of the duties of his or her office) and to comply with such other conditions as may from time to time be required of him or her by the Board of Directors.
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5.06. Chief Executive Officer. Unless otherwise specified by resolution of the Board of Directors, the Chief Executive Officer shall be the principal executive officer of the corporation and, subject to the control of the Board of Directors, shall supervise and control all of the business and affairs of the corporation and the performance by all of its other officers of their respective duties and in general shall perform all duties incident to the office of Chief Executive Officer and such other duties as may be prescribed by the Board of Directors from time to time. The Chief Executive Officer shall, when present, and in the absence of a Chairman and Vice Chairman of the Board, preside at all meetings of the stockholders and of the Board of Directors. The Chief Executive Officer will be a proper officer to sign on behalf of the corporation any deed, bill of sale, assignment, option, mortgage, pledge, note, bond, evidence of indebtedness, application, consent (to service of process or otherwise), agreement, indenture, contract, or other instrument, except in each such case where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed. The Chief Executive Officer may represent the corporation at any meeting of the stockholders or members of any other corporation, association, partnership, joint venture, or other entity in which the corporation then holds shares of capital stock or has an interest, and may vote such shares of capital stock or other interest in person or by proxy appointed by him or her, provided that the Board of Directors may from time to time confer the foregoing authority upon any other person or persons.
5.07. The President. If appointed, the President shall have, subject to the control of the Board of Directors and the Chief Executive Officer, general and active supervision and direction over the business and affairs of the corporation and over its several officers. If appointed, in the absence of the Chief Executive Officer or in the event of his/her death or disability, the President shall perform the duties of the Chief Executive Officer, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Chief Executive Officer. The President will be a proper officer to sign on behalf of the corporation any deed, bill of sale, assignment, option, mortgage, pledge, note, bond, evidence of indebtedness, application, consent (to service of process or otherwise), agreement, indenture, contract, or other instrument, except in each such case where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed. The President may represent the corporation at any meeting of the stockholders or members of any other corporation, association, partnership, joint venture, or other entity in which the corporation then holds shares of capital stock or has an interest, and may vote such shares of capital stock or other interest in person or by proxy appointed by him or her, provided that the Board of Directors may from time to time confer the foregoing authority upon any other person or persons. The President shall perform such other duties as from time to time may be assigned to him/her by the Chief Executive Officer or by the Board of Directors.
5.08. The Vice-President. If appointed, in the absence of the Chief Executive Officer and the President or in the event of their death or disability, the Vice-President (or in the event there be more than one Vice-President, the Vice-Presidents in the order designated by the Board of Directors from time to time, or in the absence of any such designation, then in the order of their appointment) shall perform the duties of the Chief Executive Officer, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Chief Executive Officer. If there is no Vice-President or in the event of the death or disability of all Vice-Presidents, then the Treasurer shall perform such duties of the President in the event of his or her absence, death, or disability. Each Vice-President will be a proper officer to sign on behalf of the corporation any deed, bill of sale, assignment, option, mortgage, pledge, note, bond, evidence of indebtedness, application, consent (to service of process or otherwise), agreement, indenture, contract, or other instrument, except in each such case where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed. Any Vice-President may represent the corporation at any meeting of the stockholders or members of any other corporation, association, partnership, joint venture, or other entity in which the corporation then holds shares of capital stock or has an interest, and may vote such shares of capital stock or other interest in person or by proxy appointed by him or her, provided that the Board of Directors may from time to time confer the foregoing authority upon any other person or persons. A Vice-President shall perform such other duties as from time to time may be assigned to him/her by the Chief Executive Officer or the President or by the Board of Directors.
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5.09. The Secretary. The Secretary shall: (a) keep the minutes of the proceedings of the stockholders and of the Board of Directors and any committee of the Board of Directors and all unanimous written consents of the stockholders, Board of Directors, and any committee of the Board of Directors in one (1) or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and of any seal of the corporation; (d) when requested or required, authenticate any records of the corporation; (e) keep a register of the address of each stockholder which shall be furnished to the Secretary by such stockholder; and (f) in general perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to him/her by the Chief Executive Officer or the President or by the Board of Directors. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the Secretary will be a proper officer to take charge of the corporation’s stock transfer books and to compile the voting record pursuant to Section 3.05 above, and to impress the corporation’s seal, if any, on any instrument signed by the Chief Executive Officer, the President, any Vice President, or any other duly authorized person, and to attest to the same. In the absence of the Secretary, a secretary pro tempore may be chosen by the directors or stockholders as appropriate to perform the duties of the Secretary.
5.10. The Treasurer. The Treasurer shall: (a) have charge and custody of and be responsible for all funds and securities of the corporation; (b) receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such bank, trust companies, or other depositories as shall be selected by the Board of Directors or any proper officer; (c) keep full and accurate accounts of receipts and disbursements in books and records of the corporation; and (d) in general perform all of the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him/her by the Chief Executive Officer or the President or by the Board of Directors. The Treasurer will render to the Chief Executive Officer, the President, the directors, and the stockholders at proper times an account of all his or her transactions as Treasurer and of the financial condition of the corporation. The Treasurer shall be responsible for preparing and filing such financial reports, financial statements, and returns as may be required by law.
5.11. Assistant Secretaries and Assistant Treasurers. The Assistant Secretaries and the Assistant Treasurers, when authorized by the Board of Directors, may sign with the Chief Executive Officer, the President or a Vice-President certificates for shares of the corporation, the issuance of which shall have been authorized by a resolution of the Board of Directors. The Assistant Secretaries and Assistant Treasurers, in general, shall perform such duties as shall be assigned to them by the Secretary or the Treasurer, respectively, or by the Chief Executive Officer, the President or the Board of Directors.
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5.12. Chairman and Vice Chairman of the Board. The Board of Directors may appoint a Chairman and a Vice Chairman, neither whom shall be an executive officer of the corporation unless specifically designated as the chief executive officer of the corporation by the Board of Directors. If appointed, the Chairman, and if not present, the Vice Chairman, will preside at all meetings of the Board of Directors and be vested with such other powers and duties as the Board of Directors may from time to time delegate to him or her.
5.13. Salaries. Subject to the requirements of applicable law or the rules and regulations of the Securities and Exchange Commission, Nasdaq or any other exchange on which the corporation’s securities are listed, the salaries of the officers of the corporation may be fixed from time to time by the Board of Directors or a committee thereof or (except as to the Chief Executive Officers’ own) left to the discretion of the Chief Executive Officer. No officer will be prevented from receiving a salary by reason of the fact that he or she is also a director of the corporation.
5.14. Additional Appointments. In addition to the officers contemplated in this Article V, the Board of Directors may appoint other agents of the corporation with such authority to perform such duties as may be prescribed from time to time by the Board of Directors.
VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.01. Certificates for Shares.
(a) Content. Certificates representing shares of the corporation shall, at a minimum, state on their face the name of the issuing corporation and that it is formed under the laws of the State of Delaware, the name of the person to whom issued, and the number and class of shares and the designation of the series, if any, the certificate represents. Such certificates shall be signed (either manually or by facsimile to the extent allowable by law) by any of the Chairman of the Board, the Vice Chairman of the Board, the Chief Executive Officer, the President, or any Vice-President and by the Secretary or any assistant secretary or the Treasurer or any assistant treasurer of the corporation, and may be sealed with a corporate seal or a facsimile thereof. Each certificate for shares shall be consecutively numbered or otherwise identified and will exhibit such information as may be required by law. If a supply of unissued certificates bearing the facsimile signature of a person remains when that person ceases to hold the office of the corporation indicated on such certificates or ceases to be the transfer agent or registrar of the corporation, they may still be issued by the corporation and countersigned, registered, issued, and delivered by the corporation’s transfer agent and/or registrar thereafter, as though such person had continued to hold the office indicated on such certificate.
15
(b) Legend as to Class or Series. If the corporation is authorized to issue different classes of shares or different series within a class, the powers, designations, preferences, and relative, participating, optional, or other special rights applicable to each class or series and the qualifications, limitations, or restrictions of such preference and/or rights shall be set forth in full or summarized on the front or back of each certificate as required by law. Alternatively, each certificate may state on its front or back that the corporation will furnish a stockholder this information on request and without charge.
(c) Stockholder List. The name and address of the person to whom shares are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation.
(d) Lost Certificates. In the event of the loss, theft, or destruction of any certificate representing shares of the corporation or of any predecessor corporation, the corporation may issue (or, in the case of any such shares as to which a transfer agent and/or registrar have been appointed, may direct such transfer agent and/or registrar to countersign, register, and issue) a new certificate, and cause the same to be delivered to the registered owner of the shares represented thereby; provided that such owner shall have submitted such evidence showing the circumstances of the alleged loss, theft, or destruction, and his, her, or its ownership of the certificate, as the corporation considers satisfactory, together with any other facts that the corporation considers pertinent; and further provided that, if so required by the corporation, the owner shall provide a bond or other indemnity in form and amount satisfactory to the corporation (and to its transfer agent and/or registrar, if applicable).
6.02. Registration of the Transfer of Shares. Registration of the transfer of shares of the corporation shall be made only on the stock transfer books of the corporation. In order to register a transfer, the record owner shall surrender the shares to the corporation for cancellation, properly endorsed by the appropriate person or persons with reasonable assurances that the endorsements are genuine and effective. Unless the corporation has established a procedure by which a beneficial owner of shares held by a nominee is to be recognized by the corporation as the owner, the corporation will be entitled to treat the registered owner of any share of the capital stock of the corporation as the absolute owner thereof and, accordingly, will not be bound to recognize any beneficial, equitable, or other claim to, or interest in, such share on the part of any other person, whether or not it has notice thereof, except as may expressly be provided by applicable law, including as may be contemplated by Title 6, Subtitle I, Article 8 of the Delaware code (or any comparable successor statutes), as in effect from time to time.
6.03. Shares Without Certificates. The Board of Directors may authorize the issuance of uncertificated shares by the corporation and may prescribe procedures for the issuance and registration of transfer thereof and with respect to such other matters as the Board of Directors shall deem necessary or appropriate.
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VII. DISTRIBUTIONS
7.01. Distributions. Subject to such restrictions or requirements as may be imposed by applicable law or the corporation’s Certificate or as may otherwise be binding upon the corporation, the Board of Directors may from time to time declare, and the corporation may pay or make, dividends or other distributions to its stockholders.
VIII. CORPORATE SEAL
8.01. Corporate Seal. The Board of Directors may provide for a corporate seal of the corporation that will have inscribed thereon any designation including the name of the corporation, Delaware as the state of incorporation, the year of incorporation, and the words “Corporate Seal.”
IX. AMENDMENTS
9.01. Amendments. If the Certificate so provides, the corporation’s Board of Directors may amend or repeal the corporation’s Bylaws unless the Certificate or the Delaware General Corporation Law reserve any particular exercise of this power exclusively to the stockholders in whole or part; provided, that any amendment of the corporation’s Bylaws that revises the requirement in Section 4.02 and/or Section 4.12 for an affirmative vote of at least two-thirds of the corporation’s directors then in office shall require the affirmative vote of at least two-thirds of the corporation’s directors then in office. The corporation’s stockholders may amend or repeal the corporation’s Bylaws by the affirmative vote of the holders of at least two-thirds of the issued and outstanding capital stock of the corporation entitled to vote thereon, even though the Bylaws may also be amended or repealed by its Board of Directors.
17
EXHIBIT 99.1
Encore Reports a 50% Increase in Fully Diluted Earnings Per Share in the 4th Quarter of 2004
4th Quarter Highlights:
- Collections increase 12%
- Revenues increase 46%
- Net income increases 48%
- Earnings per fully diluted share increase 50%
- Pre-tax cash flows from operations increase 64%
San Diego – (Business Wire) – March 3, 2005 – Encore Capital Group, Inc. (Nasdaq: ECPG), a leading accounts receivable management firm, today reported consolidated financial results for the fourth quarter and full year ended December 31, 2004.
For the fourth quarter of 2004:
- Gross collections were $53.4 million, a 12% increase over the $47.7 million in the same period of the prior year
- Total revenues were $46.0 million, a 46% increase over the $31.4 million in the same period of the prior year
- Net income was $5.7 million compared with $3.8 million in the same period of the prior year, a 48% increase
- Earnings per fully diluted share were $0.24, a 50% increase over the $0.16 in the same period of the prior year. Earnings per fully diluted share in the fourth quarter of 2004 were up 26% over the $0.19 earned in the same period of the prior year excluding the one-time other charge.
For the full year 2004:
- Gross collections were $234.7 million, a 23% increase over the $190.5 million in 2003
- Total revenues were $178.5 million, a 52% increase over the $117.5 million in 2003
- Net income was $23.2 million, a 26% increase over $18.4 million in 2003
- Earnings per fully diluted share were $0.99 a 12% increase over $0.88 in 2003. Earnings per fully diluted share in 2004 were up 41% over the $0.70 earned in 2003 excluding the one-time benefit and other charge.
“Our fourth quarter performance capped a very strong year for Encore, as we generated record levels of collections, revenues, and earnings per share,” commented Carl C. Gregory, III, Vice Chairman and CEO of Encore Capital Group, Inc. “We were able to achieve this strong growth despite scaling back on our purchasing of new portfolios throughout much of 2004 in response to less attractive pricing in the marketplace. Total purchases during 2004 were $103.4 million compared to $89.8 million in 2003. We continue to effectively develop alternative collection channels, such as legal and agency outsourcing, which increase our ability to penetrate our portfolios further. For the full year, our collections through alternative channels, other than sales, more than doubled, and we expect that our continued development of these channels will be valuable in enhancing the productivity of our collection efforts and the profitability of our operations.”
Fourth Quarter Financial Highlights
Revenue recognized, as a percentage of collections, was 86% in the fourth quarter of 2004, compared to 66% in the fourth quarter of 2003. The increase in the percentage of revenue recognized in the fourth quarter of 2004 is primarily attributable to high levels of zero-basis income, deeper penetration of more tenured portfolios, and a larger portion of portfolio purchases occurring later in the quarter.
Total operating expenses for the fourth quarter of 2004 were $27.9 million, compared with $19.8 million in the fourth quarter of 2003. The increase in total operating expenses is largely volume driven and reflects growth in the utilization of the legal collection channel and the expansion of the agency outsourcing collection channel. General and administrative expenses included approximately $0.8 million related to Sarbanes-Oxley compliance efforts and $0.1 million in SEC reporting fees and legal fees related to the Company’s secondary offering completed in January 2005.
Pretax cash flows from operations for the fourth quarter of 2004 were $14.5 million, an increase of 64% over the $8.9 million generated in the same period of 2003. (Adjustments to arrive at pre-tax cash flow from operations consisted of income tax payments of $1.4 million in the fourth quarter of 2004 and $0.9 million in the fourth quarter of 2003.) The Company exhausted its Federal net operating loss carry forward in the fourth quarter of 2003 and began to make income tax payments at the statutory rates in 2004.
The Company spent $46.1 million to purchase approximately $1.2 billion in face value of portfolios during the fourth quarter of 2004, a blended purchase price of 3.86% of face value. 96% of the portfolios purchased in the fourth quarter of 2004 were credit card receivables.
“The current purchasing market remains highly competitive,” said Mr. Gregory. “However, we believe there are opportunities to purchase portfolios that can yield acceptable returns. During the fourth quarter, we spent approximately $46.1 million on portfolios that we expect to be profitable for the Company, though to a lesser degree than portfolios purchased in prior years.”
Outlook
Commenting on the outlook for the Company, Mr. Gregory said, “We believe that 2005 will be another year of strong earnings growth, driven primarily by disciplined expense control and lower interest costs resulting from our new revolving credit facility. We are intensely focused on optimizing our operating efficiency by leveraging our sophisticated analytics to assign accounts to the channel that can collect them in the most profitable manner. Our continual focus on improving the efficiency of our operations serves the Company particularly well during periods when conditions in the purchasing market present challenges to driving top-line growth.”
“Our strong performance over the past few years has significantly improved our financial strength and flexibility. We are now in a position to begin pursuing acquisition opportunities that can expand our footprint into additional asset classes or collection channels.”
The Company also provided the following information to assist the investment community:
- Due to rising purchase prices for portfolios, an increase in the amount invested in portfolio purchases does not necessarily result in a corresponding increase in collections. This could also result in a lower revenue recognition percentage for the portfolios purchased under this scenario.
- As a result of the replacement of its Secured Credit Facility with the new revolving credit facility, the Company anticipates that contingent interest expense will decline beginning in 2005. The Company has forecasted that its contingent interest expense could be approximately 65% of 2004 levels in 2005; 35% of 2004 levels in 2006; and subsequent lower levels beyond 2006. Contingent interest expense amounted to $32.3 million for the year 2004 which represents $0.81 per fully diluted share, net of taxes.
GAAP Reconciliation
The table included in the attached supplemental financial information is a reconciliation of generally accepted accounting principles in the United States of America (“GAAP”) income before taxes, net income, fully diluted earnings per share and cash flows from operations to income before taxes, net income, fully diluted earnings per share, and cash flows from operations excluding one-time benefits, and the effects of income taxes with respect to cash flows from operations for the periods presented. We believe that these non-GAAP financial measures provide useful information to investors about our results of operations because the elimination of one-time benefits that are included in the GAAP financial measures results in enhanced comparability of certain key financial results between the periods presented.
Conference Call and Webcast
The Company will hold a conference call today at 2:00 P.M. Pacific time / 5:00 P.M. Eastern time to discuss the fourth quarter results. Members of the public are invited to listen to the live conference call via the Internet.
To hear the presentation and to access a slide presentation containing financial information that will be discussed in the conference call, log on at the Investor Relations page of the Company’s web site at www.encorecapitalgroup.com. For those who cannot listen to the live broadcast, a replay of the conference call will be available shortly after the call at the same location.
About Encore Capital Group, Inc.
Encore Capital Group, Inc. is a systems-driven purchaser and manager of charged-off consumer receivables portfolios. More information on the company can be found at www.encorecapitalgroup.com.
Forward Looking Statements
The statements in this press release that are not historical facts, including, most importantly, those statements preceded by, or that include, the words “may,” “believes,” “projects,” “expects,” “anticipates” or the negation thereof, or similar expressions, constitute “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 (the “Reform Act”). These statements may include, but are not limited to, projections of future contingent interest expense, purchase volumes, revenues, income or loss (including our expectations regarding the current environment for portfolio purchases and its effect on revenue recognition rates and profitability); estimates of capital expenditures; plans for future operations, products or services; and financing needs or plans, as well as assumptions
relating to those matters. For all “forward-looking statements,” the Company claims the protection of the safe harbor for forward-looking statements contained in the Reform Act. Such forward-looking statements involve risks, uncertainties and other factors which may cause actual results, performance or achievements of the Company and our subsidiaries to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements. Factors that could affect the Company’s results and cause them to materially differ from those contained in the forward-looking statements include: the Company’s ability to purchase receivables portfolios on acceptable terms and in sufficient quantities; the Company’s ability to acquire and collect on portfolios consisting of new types of receivables; the Company’s ability to recover sufficient amounts on or with respect to receivables to fund operations; the Company’s ability to
successfully execute acquisitions; the Company’s continued servicing of receivables in its third party financing transactions; the Company’s ability to hire and retain qualified personnel to recover on its receivables efficiently; changes in, or failure to comply with, government regulations; the costs, uncertainties and other effects of legal and administrative proceedings; and risk factors and cautionary statements made in the Company’s Annual Report on Form 10-K as of and for the year ended December 31, 2004. Forward-looking statements speak only as of the date the statement was made. They are inherently subject to risks and uncertainties, some of which the Company cannot predict or quantify. Future events and actual results could differ materially from the forward-looking statements. The Company will not undertake and specifically declines any obligation to publicly release the result of any revisions to any forward-looking statements to reflect events or circumstances after the
date of such statements or to reflect the occurrence of anticipated or unanticipated events, whether as the result of new information, future events or for any other reason. In addition, it is the Company’s policy generally not to make any specific projections as to future earnings, and the Company does not endorse any projections regarding future performance that may be made by third parties.
CONTACT:
Encore Capital Group, Inc. (Shareholders/Analysts)
Carl C. Gregory, III, 858-309-6961
carl.gregory@encorecapitalgroup.com
or
Financial Relations Board (Press)
Tony Rossi, 310-407-6563 (Investor Relations)
trossi@financialrelationsboard.com
ENCORE CAPITAL GROUP, INC.
Consolidated Statements of Financial Condition
(In Thousands, Except Par Value Amounts)
| December 31, | December 31, | |||||||
|---|---|---|---|---|---|---|---|---|
| 2004 | 2003 | |||||||
|
|
|
|||||||
| Assets | ||||||||
| Cash and cash equivalents | $ | 49,731 | $ | 38,612 | ||||
| Restricted cash | 3,432 | 842 | ||||||
| Investment in receivable portfolios, net | 137,963 | 89,136 | ||||||
| Investment in retained interest | - | 1,231 | ||||||
| Property and equipment, net | 3,360 | 2,786 | ||||||
| Deferred tax asset, net | 361 | 1,358 | ||||||
| Other assets | 6,295 | 4,320 | ||||||
|
|
|
|||||||
| Total assets | $ | 201,142 | $ | 138,285 | ||||
|
|
|
|||||||
| Liabilities and stockholders' equity | ||||||||
| Liabilities | ||||||||
| Accounts payable and accrued liabilities | $ | 17,418 | $ | 11,644 | ||||
| Accrued profit sharing arrangement | 20,881 | 12,749 | ||||||
| Income tax payable | - | 883 | ||||||
| Notes payable and other borrowings | 66,567 | 41,178 | ||||||
| Capital lease obligations | 261 | 460 | ||||||
|
|
|
|||||||
| Total liabilities | 105,127 | 66,914 | ||||||
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|
|
|||||||
| Commitments and contingencies | ||||||||
Stockholders' equity |
||||||||
| Convertible preferred stock, $.01 par value, 5,000 shares | ||||||||
| authorized, and no shares issued and outstanding | - | - | ||||||
| Common stock, $.01 par value, 50,000 shares authorized, | ||||||||
| and 22,166 shares and 22,003 shares issued and outstanding | ||||||||
| as of December 31, 2004 and 2003, respectively | 222 | 220 | ||||||
| Additional paid-in capital | 66,788 | 65,387 | ||||||
| Accumulated earnings | 28,834 | 5,658 | ||||||
| Accumulated other comprehensive income | 171 | 106 | ||||||
|
|
|
|||||||
| Total stockholders' equity | 96,015 | 71,371 | ||||||
|
|
|
|||||||
| Total liabilities and stockholders' equity | $ | 201,142 | $ | 138,285 | ||||
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|
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ENCORE CAPITAL GROUP, INC.
Consolidated Statements of Operations
(In Thousands, Except Per Share Amounts)
| Years ended December 31, | |||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|
|
|
|||||||||||
| 2004 | 2003 | 2002 | |||||||||
|
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|
|
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| Revenues | |||||||||||
| Revenue from receivable portfolios | $ | 175,296 | $ | 115,575 | $ | 80,961 | |||||
| Revenue from retained interest | 2,487 | 307 | 5,707 | ||||||||
| Servicing fees and other related revenue | 692 | 1,620 | 3,712 | ||||||||
|
|
|
|
|||||||||
| Total revenues | 178,475 | 117,502 | 90,380 | ||||||||
|
|
|
|
|||||||||
| Operating expenses | |||||||||||
| Salaries and employee benefits | 47,193 | 39,286 | 35,137 | ||||||||
| Other operating expenses | 13,645 | 11,335 | 7,934 | ||||||||
| Cost of legal collections | 28,202 | 15,827 | 11,028 | ||||||||
| Collection agency commissions | 4,786 | - | - | ||||||||
| General and administrative expenses | 9,212 | 6,509 | 6,314 | ||||||||
| Provision for portfolio losses | - | - | 1,049 | ||||||||
| Depreciation and amortization | 1,951 | 2,023 | 2,453 | ||||||||
|
|
|
|
|||||||||
| Total operating expenses | 104,989 | 74,980 | 63,915 | ||||||||
|
|
|
|
|||||||||
| Income before other income (expense) | |||||||||||
| and income taxes | 73,486 | 42,522 | 26,465 | ||||||||
| Other income (expense) | |||||||||||
| Interest expense | (35,330 | ) | (20,479 | ) | (18,592 | ) | |||||
| Other income | 690 | 7,380 | 213 | ||||||||
|
|
|
|
|||||||||
| Total other expense | (34,640 | ) | (13,099 | ) | (18,379 | ) | |||||
|
|
|
|
|||||||||
| Income before income taxes | 38,846 | 29,423 | 8,086 | ||||||||
| (Provision for) benefit from income taxes | (15,670 | ) | (11,003 | ) | 5,703 | ||||||
|
|
|
|
|||||||||
| Net income | 23,176 | 18,420 | 13,789 | ||||||||
|
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|
|
|||||||||
| Preferred stock dividends | - | (374 | ) | (440 | ) | ||||||
|
|
|
|
|||||||||
| Net income available to common stockholders | $ | 23,176 | $ | 18,046 | $ | 13,349 | |||||
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|||||||||
| Weighted average shares outstanding | 22,072 | 10,965 | 7,339 | ||||||||
| Incremental shares from assumed conversion | |||||||||||
| of warrants, options, and preferred stock | 1,409 | 9,908 | 9,120 | ||||||||
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|
|
|||||||||
| Adjusted weighted average shares outstanding | 23,481 | 20,873 | 16,459 | ||||||||
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|
|||||||||
| Earnings per share - Basic | $ | 1.05 | $ | 1.65 | $ | 1.82 | |||||
|
|
|
|
|||||||||
| Earnings per share - Diluted | $ | 0.99 | $ | 0.88 | $ | 0.84 | |||||
|
|
|
|
|||||||||
ENCORE CAPITAL GROUP, INC.
Consolidated Statements of Stockholders' Equity and Comprehensive Income
(In Thousands)
| Accumulated | ||||||||||||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| Additional | Accumulated | Other | ||||||||||||||||||||||||
| Common Stock | Preferred Stock | Paid-In | Earnings | Comprehensive | ||||||||||||||||||||||
|
|
|
|||||||||||||||||||||||||
| Shares | Par | Shares | Cost | Capital | (Deficit) | Income | Total | |||||||||||||||||||
|
|
|
|
|
|
|
|
| |||||||||||||||||||
| Balance at December 31, 2001 | 7,161 | $ | 72 | - | $ | - | $ | 22,111 | $ | (25,737 | ) | $ | 1,196 | $ | (2,358 | ) | ||||||||||
| Net income | - | - | - | - | - | 13,789 | - | 13,789 | ||||||||||||||||||
| Other comprehensive income: | ||||||||||||||||||||||||||
| unrealized gain on non-qualified | ||||||||||||||||||||||||||
| deferred compensation plan assets | - | - | - | - | - | - | 39 | 39 | ||||||||||||||||||
| Other comprehensive loss: decrease in | ||||||||||||||||||||||||||
| unrealized gain on investment | ||||||||||||||||||||||||||
| retained interest, net of tax | - | - | - | - | - | - | (868 | ) | (868 | ) | ||||||||||||||||
|
| ||||||||||||||||||||||||||
| Comprehensive income | - | - | - | - | - | - | - | 12,960 | ||||||||||||||||||
| Net proceeds from issuance of Preferred Stock | - | - | 1,000 | 10 | 4,578 | - | - | 4,588 | ||||||||||||||||||
| Preferred dividends | - | - | - | - | - | (440 | ) | - | (440 | ) | ||||||||||||||||
| Forgiveness of debt, net | - | - | - | - | 4,665 | - | - | 4,665 | ||||||||||||||||||
| Issuance of common stock warrants | - | - | - | - | 125 | - | - | 125 | ||||||||||||||||||
| Exercise of common stock warrants | 250 | 2 | - | - | - | - | - | 2 | ||||||||||||||||||
|
|
|
|
|
|
|
|
| |||||||||||||||||||
| Balance at December 31, 2002 | 7,411 | 74 | 1,000 | 10 | 31,479 | (12,388 | ) | 367 | 19,542 | |||||||||||||||||
| Net income | - | - | - | - | - | 18,420 | - | 18,420 | ||||||||||||||||||
| Other comprehensive income: | ||||||||||||||||||||||||||
| unrealized gain on non-qualified | ||||||||||||||||||||||||||
| deferred compensation plan assets | - | - | - | - | - | - | 46 | 46 | ||||||||||||||||||
| Other comprehensive loss: decrease in | ||||||||||||||||||||||||||
| unrealized gain on investment | ||||||||||||||||||||||||||
| retained interest, net of tax | - | - | - | - | - | - | (307 | ) | (307 | ) | ||||||||||||||||
|
| ||||||||||||||||||||||||||
| Comprehensive income | - | - | - | - | - | - | - | 18,159 | ||||||||||||||||||
| Preferred dividends | - | - | - | - | - | (374 | ) | - | (374 | ) | ||||||||||||||||
| Preferred stock converted to common stock | 10,000 | 100 | (1,000 | ) | (10 | ) | (90 | ) | - | - | - | |||||||||||||||
| Net proceeds from issuance of common stock | 3,000 | 30 | - | - | 30,101 | - | - | 30,131 | ||||||||||||||||||
| Exercise of common stock warrants | 957 | 10 | - | - | 615 | - | - | 625 | ||||||||||||||||||
| Exercise of stock options | 635 | 6 | - | - | 608 | - | - | 614 | ||||||||||||||||||
| Excess tax benefits related to stock options | - | - | - | - | 2,546 | - | - | 2,546 | ||||||||||||||||||
| Amortization of stock options | ||||||||||||||||||||||||||
| issued at below market | - | - | - | - | 128 | - | - | 128 | ||||||||||||||||||
|
|
|
|
|
|
|
|
| |||||||||||||||||||
| Balance at December 31, 2003 | 22,003 | 220 | - | - | 65,387 | 5,658 | 106 | 71,371 | ||||||||||||||||||
| Net income | - | - | - | - | - | 23,176 | - | 23,176 | ||||||||||||||||||
| Other comprehensive income: | ||||||||||||||||||||||||||
| unrealized gain on non-qualified | ||||||||||||||||||||||||||
| deferred compensation plan assets | - | - | - | - | - | - | 86 | 86 | ||||||||||||||||||
| Other comprehensive loss: decrease in | ||||||||||||||||||||||||||
| unrealized gain on investment | ||||||||||||||||||||||||||
| retained interest, net of tax | - | - | - | - | - | - | (21 | ) | (21 | ) | ||||||||||||||||
|
| ||||||||||||||||||||||||||
| Comprehensive income | - | - | - | - | - | - | - | 23,241 | ||||||||||||||||||
| Exercise of stock options | 163 | 2 | - | - | 167 | - | - | 169 | ||||||||||||||||||
| Excess tax benefits related to stock options | - | - | - | - | 1,125 | - | - | 1,125 | ||||||||||||||||||
| Amortization of stock options | ||||||||||||||||||||||||||
| issued at below market | - | - | - | - | 109 | - | - | 109 | ||||||||||||||||||
|
|
|
|
|
|
|
|
| |||||||||||||||||||
| Balance at December 31, 2004 | 22,166 | $ | 222 | - | $ | - | $ | 66,788 | $ | 28,834 | $ | 171 | $ | 96,015 | ||||||||||||
|
|
|
|
|
|
|
|
| |||||||||||||||||||
ENCORE CAPITAL GROUP, INC.
Consolidated Statements of Cash Flows
(In Thousands)
| Years ended December 31, | ||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
|
|
|
||||||||||
| 2004 | 2003 | 2002 | ||||||||||
|
|
|
|
||||||||||
| Operating activities | ||||||||||||
| Gross collections from investment in receivable portfolios | $ 228,657 | $ | 178,950 | $ 124,388 | ||||||||
| Gross collections from investment in retained interest | 3,682 | 6,819 | 13,929 | |||||||||
| Gross collections for third parties | 2,337 | 4,750 | 10,491 | |||||||||
|
|
|
|
||||||||||
| Total gross collections | 234,676 | 190,519 | 148,808 | |||||||||
| Proceeds from litigation settlement | - | 11,100 | - | |||||||||
| Less: | ||||||||||||
| Amounts collected on behalf of third parties | (2,337 | ) | (4,750 | ) | (10,491 | ) | ||||||
| Amounts applied to principal on receivable portfolios | (53,362 | ) | (63,374 | ) | (43,423 | ) | ||||||
| Amounts applied to principal of securitization 98-1 | (1,195 | ) | (6,512 | ) | (7,808 | ) | ||||||
| Litigation settlement proceeds applied to principal of receivable | ||||||||||||
| portfolios | - | (692 | ) | - | ||||||||
| Legal and other costs related to litigation settlement | - | (3,198 | ) | - | ||||||||
| Servicing fees | 692 | 1,620 | 3,712 | |||||||||
| Operating Expenses | ||||||||||||
| Salaries and employee benefits | (44,526 | ) | (38,431 | ) | (32,909 | ) | ||||||
| Other operating expenses | (12,083 | ) | (11,044 | ) | (7,803 | ) | ||||||
| Cost of legal collections | (28,202 | ) | (15,827 | ) | (11,028 | ) | ||||||
| Collection agency commissions | (4,786 | ) | - | - | ||||||||
| General and administrative | (8,873 | ) | (6,303 | ) | (6,707 | ) | ||||||
| Interest payments | (2,892 | ) | (5,222 | ) | (4,146 | ) | ||||||
| Contingent interest payments | (24,128 | ) | (14,455 | ) | (4,246 | ) | ||||||
| Other income | 690 | 295 | 211 | |||||||||
| Decrease (Increase) in restricted cash | (2,590 | ) | 2,263 | (52 | ) | |||||||
| Income taxes | (14,672 | ) | (2,018 | ) | 572 | |||||||
|
|
|
|
||||||||||
| Net cash provided by operating activities | 36,412 | 33,971 | 24,690 | |||||||||
|
|
|
|
||||||||||
| Investing activities | ||||||||||||
| Purchases of receivable portfolios | (103,374 | ) | (89,834 | ) | (62,525 | ) | ||||||
| Collections applied to principal of receivable portfolios | 53,362 | 63,374 | 43,423 | |||||||||
| Litigation settlement proceeds applied to principal of receivable | ||||||||||||
| portfolios | - | 692 | - | |||||||||
| Collections applied to principal of securitization 98-1 | 1,195 | 6,512 | 7,808 | |||||||||
| Proceeds from put-backs of receivable portfolios | 1,185 | 799 | 882 | |||||||||
| Proceeds from the sale of property and equipment | - | - | 3 | |||||||||
| Purchases of property and equipment | (2,525 | ) | (1,015 | ) | (749 | ) | ||||||
|
|
|
|
||||||||||
| Net cash used in investing activities | (50,157 | ) | (19,472 | ) | (11,158 | ) | ||||||
|
|
|
|
||||||||||
| Financing activities | ||||||||||||
| Proceeds from notes payable and other borrowings | 78,676 | 78,226 | 62,183 | |||||||||
| Repayment of notes payable and other borrowings | (53,288 | ) | (85,478 | ) | (79,669 | ) | ||||||
| Capitalized loan costs relating to financing arrangement | (494 | ) | (245 | ) | (154 | ) | ||||||
| Proceeds from sale of common stock, net | - | 30,131 | - | |||||||||
| Proceeds from exercise of common stock options | 169 | 614 | - | |||||||||
| Proceeds from exercise of common stock warrants | - | 625 | 2 | |||||||||
| Proceeds from sale of preferred stock | - | - | 4,588 | |||||||||
| Payments of preferred dividends | - | (374 | ) | (250 | ) | |||||||
| Repayment of capital lease obligations | (199 | ) | (138 | ) | (892 | ) | ||||||
|
|
|
|
||||||||||
| Net cash provided by (used in) financing activities | 24,864 | 23,361 | (14,192 | ) | ||||||||
|
|
|
|
||||||||||
| Net increase (decrease) in cash | 11,119 | 37,860 | (660 | ) | ||||||||
| Cash and cash equivalents, beginning of year | 38,612 | 752 | 1,412 | |||||||||
|
|
|
|
||||||||||
| Cash and cash equivalents, end of year | $ 49,731 | $ | 38,612 | $ 752 | ||||||||
|
|
|
|
||||||||||
ENCORE CAPITAL GROUP, INC.
Consolidated Statements of Cash Flows (continued)
Reconciliation of Net Income to Net Cash Provided by Operating Activities
(In Thousands)
| Years ended December 31, | |||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|
|
| |||||||||||
| 2004 | 2003 | 2002 | |||||||||
|
|
|
|
|||||||||
| Net income | $ | 23,176 | $ | 18,420 | $ | 13,789 | |||||
| Adjustments to reconcile net income to net cash | |||||||||||
| provided by operating activities: | |||||||||||
| Depreciation and amortization | 1,951 | 2,023 | 2,452 | ||||||||
| Amortization of loan costs | 76 | 603 | 661 | ||||||||
| Amortization of debt discount | - | 742 | 112 | ||||||||
| Amortization of stock based compensation | 109 | 128 | - | ||||||||
| Deferred income tax expense (benefit) | 815 | 5,456 | (6,234 | ) | |||||||
| Excess tax benefits from stock options | 1,125 | 2,722 | - | ||||||||
| Increase in income on retained interest | - | - | 414 | ||||||||
| Provision for portfolio losses | - | - | 1,049 | ||||||||
| Changes in operating assets and liabilities | |||||||||||
| (Increase) decrease in restricted cash | (2,590 | ) | 2,263 | (52 | ) | ||||||
| Increase in other assets | (2,254 | ) | (1,339 | ) | (783 | ) | |||||
| Increase in accrued profit sharing arrangement | 8,132 | 1,569 | 8,802 | ||||||||
| Increase in accounts payable and accrued liabilities | 5,872 | 1,384 | 4,480 | ||||||||
|
|
|
|
|||||||||
| Net cash provided by operating activities | $ | 36,412 | $ | 33,971 | $ | 24,690 | |||||
|
|
|
|
|||||||||
| Supplemental schedules of non-cash investing activities: | |||||||||||
| Property and equipment acquired under capital leases | $ | - | $ | 253 | $ | - | |||||
|
|
|
|
|||||||||
| Supplemental schedules of non-cash financing activities: | |||||||||||
| Issuance of common stock warrants | |||||||||||
| in connection with debt agreements | $ | - | $ | - | $ | 125 | |||||
|
|
|
|
|||||||||
| Recordation of equity in connection with debt forgiveness | $ | - | $ | - | $ | 4,665 | |||||
|
|
|
|
|||||||||
Encore Capital Group, Inc.
Supplemental Financial Information
Reconciliation of GAAP Income Before Taxes, Net Income, Fully Diluted Earnings Per Share and Cash Flow
From Operations to Income Before Taxes, Net Income, Fully Diluted Earnings Per Share and Cash Flow From
Operations Excluding One-Time Benefits and Charges
For the Quarters and the Years Ended December 31, 2004 and 2003
(In Thousands, Except Percentages and Earning Per Share)
| Quarters Ended | Years Ended | |||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| December 31, | December 31, | |||||||||||||
|
|
|
|||||||||||||
| 2004 | 2003 | 2004 | 2003 | |||||||||||
|
|
|
|
|
|||||||||||
| Income Before Taxes | ||||||||||||||
| GAAP, as reported | $ | 9,674 | $ | 5,071 | $ | 38,846 | $ | 29,423 | ||||||
| Gain on settlement of litigation | - | - | - | (7,210 | ) | |||||||||
| Write off of deferred costs | - | 870 | - | 870 | ||||||||||
|
|
|
|
|
|||||||||||
| Income before taxes, excluding | ||||||||||||||
| one-time benefit and charges | $ | 9,674 | $ | 5,941 | $ | 38,846 | $ | 23,083 | ||||||
|
|
|
|
|
|||||||||||
| Percentage increase over prior period | 62.8 | % | 68.3 | % | ||||||||||
|
|
|
|||||||||||||
| Net Income | ||||||||||||||
| GAAP, as reported | $ | 5,683 | $ | 3,841 | $ | 23,176 | $ | 18,420 | ||||||
| Gain on settlement of litigation | - | - | - | (4,376 | ) | |||||||||
| Write off of deferred costs | - | 528 | - | 528 | ||||||||||
|
|
|
|
|
|||||||||||
| Net income, excluding | ||||||||||||||
| one-time benefits and charges | $ | 5,683 | $ | 4,369 | $ | 23,176 | $ | 14,572 | ||||||
|
|
|
|
|
|||||||||||
| Percentage increase over prior period | 30.1 | % | 59.0 | % | ||||||||||
|
|
|
|||||||||||||
| Fully Diluted Earnings Per Share | ||||||||||||||
| GAAP, as reported | $ | 0.24 | $ | 0.16 | $ | 0.99 | $ | 0.88 | ||||||
| Gain on settlement of litigation1 | - | - | - | (0.21 | ) | |||||||||
| Write off of deferred costs | - | 0.03 | - | 0.03 | ||||||||||
|
|
|
|
|
|||||||||||
| Fully diluted earnings per share, | ||||||||||||||
| excluding one-time benefits and charges | $ | 0.24 | $ | 0.19 | $ | 0.99 | $ | 0.70 | ||||||
|
|
|
|
|
|||||||||||
| Percentage increase over prior period | 26.3 | % | 41.4 | % | ||||||||||
|
|
|
|||||||||||||
| Cash Flow From Operations: | ||||||||||||||
| GAAP, as reported | $ | 13,158 | $ | 7,911 | $ | 36,412 | $ | 33,971 | ||||||
| Income taxes paid | 1,377 | 941 | 14,672 | 2,018 | ||||||||||
|
|
|
|
|
|||||||||||
| Pre-tax cash flows from operations | $ | 14,535 | $ | 8,852 | $ | 51,084 | $ | 35,989 | ||||||
| Proceeds from litigation settlement1 | - | - | - | (11,100 | ) | |||||||||
| Legal and other costs related to | ||||||||||||||
| litigation settlement1 | - | - | - | 3,198 | ||||||||||
| Litigation proceeds applied to portfolio1 | - | - | - | 692 | ||||||||||
|
|
|
|
|
|||||||||||
| Pre-tax cash flow from operations | ||||||||||||||
| excluding one-time benefit | $ | 14,535 | $ | 8,852 | $ | 51,084 | $ | 28,779 | ||||||
|
|
|
|
|
|||||||||||
| Percentage increase over prior period | 64.2 | % | 77.5 | % | ||||||||||
|
|
|
|||||||||||||
1 This is the result of a net pretax gain of $7.2 million, a net after-tax gain of $4.4 million, or $0.21 per fully diluted share associated with a litigation settlement during the first quarter of 2003.