Registration
No. 333-_______
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
ENCORE
CAPITAL GROUP, INC.
(Exact
Name of Registrant as Specified in Its Charter)
|
Delaware |
48-1090909 |
|
(State
or Other Jurisdiction
of
Incorporation or Organization) |
(I.R.S.
Employer
Identification
No.) |
8875
Aero Drive, Suite 200, San Diego, California 92123
(Address
of Principal Executive Office) (Zip Code)
ENCORE
CAPITAL GROUP, INC. 2005 STOCK INCENTIVE PLAN
(Full
Title of the Plan)
Carl
C. Gregory, III
Vice
Chairman and Chief Executive Officer
ENCORE
CAPITAL GROUP, INC.
8875
Aero Drive, Suite 200
San
Diego, California 92123
(Name
and Address of Agent for Service)
(877)
445-4581
(Telephone
Number, Including Area Code, of Agent For Service)
With
copy to:
John
Dorris
Snell
& Wilmer L.L.P.
One
Arizona Center
Phoenix,
Arizona 85004
(602)
382-6000
CALCULATION
OF REGISTRATION FEE
|
Title
Of Securities
To
Be Registered |
Amount
To Be
Registered(1) |
Proposed
Maximum
Offering
Price
per Share(2) |
Proposed
Maximum
Aggregate
Offering
Price(2) |
Amount
Of
Registration
Fee |
|
Common
Stock
$0.01
par value |
1,500,000
|
$14.16 |
$21,232,500 |
$2,499.07 |
|
(1) |
In
the event of a stock split, stock dividend, or similar transaction
involving the Company’s Common Stock, in order to prevent dilution, the
number of shares registered shall be automatically increased to cover the
additional shares in accordance with Rule 416(a) under the Securities Act
of 1933. |
|
(2) |
Estimated
solely for purposes of calculating the registration fee pursuant to
Rule 457(c) and 457(h), based on the average high and low prices of
the Common Stock on May 25, 2005, as reported by the Nasdaq National
Market. |
Part
I
Information
Required In Section 10(a) Prospectus
The
document(s) containing the information specified in Part I of Form S-8 will be
sent or given to participating employees as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended. These documents are not being filed with the
Securities and Exchange Commission either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424. These
documents and the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
Part
II
Information
Required In The Registration Statement
Item
3. Incorporation
of Documents by Reference
The
following documents, which have been filed with the Securities and Exchange
Commission by Encore Capital Group, Inc. are incorporated by reference in this
Registration Statement:
|
1. |
The
Company’s Annual Report on Form 10-K for the year ended December 31,
2004. |
|
2. |
The
Company’s Quarterly Report on Form 10-Q for the quarter ended March 31,
2005. |
|
3. |
The
Company’s Current Reports on Form 8-K dated March 7, 2005, April 5, 2005
and May 5, 2005. |
|
4. |
The
description of the Company’s Common Stock contained in the Company’s
Registration Statement on Form 8-A, filed with the Commission on June 23,
1999, including any amendment or report filed to update such
description. |
In
addition, all documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities offered hereby
have been sold or which removes from registration all such securities then
remaining unsold shall be deemed to be incorporated herein by reference and to
be a part hereof from the date of filing of such documents.
2
Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item
4. Description
of Securities
Our
common stock is registered pursuant to Section 12 of the Exchange Act, and,
therefore, the description of securities is omitted.
Item
5. Interests
of Named Experts and Counsel
None.
Item
6. Indemnification
of Directors and Officers
Our
Restated Certificate of Incorporation provides that our directors shall not be
personally liable to us or our stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability for: (i) any breach of the
director’s duty of loyalty to us or our stockholders; (ii) acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law; (iii) liability for payments of dividends or stock purchases or redemptions
in violation of Section 174 of the Delaware General Corporation Law; or (iv) any
transaction from which the director derived an improper personal benefit. In
addition, our Certificate of Incorporation provides that we will to the fullest
extent authorized by the Delaware General Corporation Law, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits us to provide broader indemnification rights
than such law permitted us to provide prior to such amendment), indemnify and
hold harmless any person who was or is a party, or is threatened to be made a
party to or is otherwise involved in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative by reason of the fact that such person is or was our director or
officer, or is or was serving at our request as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter an “Indemnitee”) against expenses, liabilities and losses
(including attorneys’ fees, judgments, fines, excise taxes or penalties paid in
connection with the Employee Retirement Income Security Act of 1974, as amended,
and amounts paid in settlement) reasonably incurred or suffered by such
Indemnitee in connection therewith; provided, however, that except as otherwise
provided with respect to proceedings to enforce rights to indemnification, we
will indemnify any such Indemnitee in connection with a proceeding (or part
thereof) initiated by such Indemnitee only if such proceeding or part thereof
was authorized in advance by our board of directors.
3
The right
to indemnification set forth above includes the right to require us to pay the
expenses (including attorneys’ fees) incurred in defending any such proceeding
in advance of its final disposition; provided, however, that, if the Delaware
General Corporation Law requires, an advancement of expenses incurred by an
Indemnitee in his capacity as a director or officer (and not in any other
capacity in which service was or is rendered by such Indemnitee, including,
without limitation, service to an employee benefit plan) shall be made only upon
delivery to us of an undertaking, by or on behalf of such Indemnitee, to repay
all amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is not further right to appeal that such Indemnitee is
not entitled to be indemnified for such expenses under the Delaware General
Corporate Law or otherwise. The rights to indemnification and to the advancement
of expenses conferred herewith are contract rights and continue as to an
Indemnitee who has ceased to be a director, officer, employee or agent and inure
to the benefit of the Indemnitee’s heirs, executors and
administrators.
The
Delaware General Corporation Law provides that indemnification is permissible
only when the director, officer, employee, or agent acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of the
Registrant, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the conduct was unlawful. The Delaware General
Corporation Law also precludes indemnification in respect of any claim, issue,
or matter as to which an officer, director, employee, or agent shall have been
adjudged to be liable to the Registrant unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine that, despite such adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses that the Court of Chancery or such other court shall
deem proper.
In
addition, we have entered into and/or may enter into agreements to indemnify
certain of our directors and officers to the fullest extent allowed by law,
subject to certain exceptions. To the extent that our board or stockholders may
in the future wish to limit or repeal our ability to provide indemnification to
our officers and directors, such repeal or limitation may not be effective as to
directors or officers who are parties to any indemnification agreements because
their rights to full protection would be contractually assured by such
agreements.
Item
8. Exhibits
A list of
exhibits is set forth on the Exhibit Index.
Item
9. Undertakings
(a) The
undersigned Company hereby undertakes:
(1) To
file, during any period in which offers or sales are being made of the
securities registered hereby, a post-effective amendment to this Registration
Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
4
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of this 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 this Registration Statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement;
provided,
however, that paragraphs (a)(1)(i) and (a)(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 SEC
by the Company pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(b) The
undersigned Company hereby further undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Company’s annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
(and, where applicable, each filing of the annual report of the employee benefit
plan pursuant to Section 15(d) of the Securities Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Company will, unless in the
opinion of 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 Securities
Act and will be governed by the final adjudication of such issue.
5
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 San
Diego, State of California, on this 27th day of May, 2005.
ENCORE CAPITAL GROUP,
INC.,
a Delaware
corporation
By: /s/
Carl C. Gregory, III
Carl C. Gregory, III
Vice Chairman and
Chief Executive Officer
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 date
indicated.
|
Name
and Signature |
Title |
Date
| |
|
/s/
Carl C. Gregory, III |
Vice
Chairman, Chief Executive Officer and Director |
May
27, 2005 | |
|
Carl
C. Gregory, III |
(Principal
Executive Officer) |
||
|
/s/
Paul Grinberg |
Chief
Financial Officer |
May
27, 2005 | |
|
Paul
Grinberg |
(Principal
Accounting and Financial Officer) |
||
|
/s/
J. Brandon Black * |
President,
Chief Operating Officer and Director |
May
27, 2005 | |
|
J.
Brandon Black |
|||
|
/s/
Richard A. Mandell* |
Chairman
of the Board of Directors |
May
27, 2005 | |
|
Richard
A. Mandell |
|||
|
/s/
Barry R. Barkley * |
Director |
May
27, 2005 | |
|
Barry
R. Barkley |
|||
|
/s/
Raymond Fleming * |
Director |
May
27, 2005 | |
|
Raymond
Fleming |
|||
|
/s/
Eric D. Kogan * |
Director |
May
27, 2005 | |
|
Eric
D. Kogan |
|||
|
|
Director |
May
__, 2005 | |
|
Alexander
Lemond |
|||
|
/s/
Peter W. May * |
Director |
May
27, 2005 | |
|
Peter
W. May |
|||
|
/s/
Nelson Peltz * |
Director |
May
27, 2005 | |
|
Nelson
Peltz |
|||
* /s/
Carl C. Gregory, III
As
attorney-in-fact pursuant to power of attorney dated on or about May 16,
2005
6
EXHIBIT
INDEX
|
Exhibit
Number |
Description
and Method of Filing
|
|
4.1
|
Encore
Capital Group, Inc. 2005 Stock Incentive Plan included as Appendix I to
the Proxy Statement filed April 5, 2005.
|
|
4.2
|
Form
of Option Agreement pursuant to 2005 Stock Incentive Plan (incorporated by
reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K
filed on May 5, 2005).
|
|
5.1
|
Opinion
of Snell & Wilmer L.L.P. (filed herewith).
|
|
23.1
|
Consent
of BDO Seidman, LLP (filed herewith).
|
|
23.2
|
Consent
of Snell & Wilmer L.L.P. (included in Exhibit 5).
|
|
24.1
|
Power
of Attorney (filed herewith).
|
7
Exhibit
5.1
May 26,
2005
Securities
and Exchange Commission
450 Fifth
Street, N.W.
Washington,
D.C. 20549
Re: Encore
Capital Group, Inc. 2005 Stock Incentive Plan
Ladies
and Gentlemen:
We have
acted as counsel to Encore Capital Group, Inc. (the “Company”) in connection
with its Registration Statement on Form S-8 (the “Registration Statement”),
filed by the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, relating to the registration of 1,500,000
shares of the Company’s Common Stock, $0.01 par value (the “Shares”) issuable
pursuant to the Encore Capital Group, Inc. 2005 Stock Incentive Plan (the
“Plan”).
It is our
opinion that the
Shares, when issued and sold in accordance with the terms of the Plan, will be
validly issued, fully paid, and non-assessable.
In
rendering this opinion, we have reviewed and relied upon such documents and
records of the Company as we have deemed necessary and have assumed the
following:
(i) the
genuineness of all signatures and the authenticity of documents submitted to us
as originals, and the conformity to originals of all documents submitted to us
as copies;
(ii) the
accuracy, completeness, and genuineness of all representations and
certifications with respect to factual matters, made to us by officers of the
Company and public officials; and
(iii) the
accuracy and completeness of Company records.
The
opinions expressed herein are limited solely to the General Corporation Law of
the State of Delaware. We express no opinion on the laws of any other
jurisdiction or the applicability or effect of any such laws or
principles.
The
opinions expressed herein are based upon the law and other matters in effect on
the date hereof, and we assume no obligation to revise or supplement this
opinion should such law be changed by legislative action, judicial decision, or
otherwise, or should any facts or other matters upon which we have relied be
changed.
We hereby
consent to the use of this opinion as an exhibit to the Registration Statement.
In giving this consent, we do not thereby admit that we are within the category
of persons whose consent is required under Section 7 of the Securities Act
and the rules and regulations thereunder.
Very truly
yours,
/s/ SNELL &
WILMER L.L.P.
Exhibit
23.1
Consent
of Independent Registered Public Accounting Firm
We hereby
consent to the incorporation by reference in the Prospectus constituting a part
of this Registration Statement on Form S-8 of our reports dated February 4, 2005
relating to the consolidated financial statements of Encore Capital Group Inc.
and
the effectiveness of Encore Capital Group, Inc.’s internal control over
financial reporting appearing
in its Annual Report on Form 10-K for the year ended December 31,
2004.
/s/BDO
Seidman, LLP
Costa
Mesa, California
May 27,
2005
Exhibit
24
POWER OF
ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints CARL C. GREGORY, III and PAUL GRINBERG, and each of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution for him in his name, place and stead, in any and
all capacities, to sign the Registration Statement on Form S-8 relating to the
Encore Capital Group, Inc. 2005 Stock Incentive Plan, and any and all amendments
thereto, and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises as fully and to all intents and purposes as he might
or could do in person hereby ratifying and confirming all that said
attorneys-in-fact and agents, or his or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
May
16, 2005 |
/s/
Barry R. Barkley | |
|
Barry
R. Barkley | ||
|
May
16, 2005 |
/s/
J. Brandon Black | |
|
J.
Brandon Black | ||
May
16, 2005 |
/s/
Raymond Fleming | |
|
Raymond
Fleming | ||
May
16, 2005 |
/s/
Eric D. Kogan | |
|
Eric
D. Kogan | ||
May
__, 2005 |
||
|
Alexander
Lemond | ||
May
16, 2005 |
/s/
Richard A. Mandell | |
|
Richard
A. Mandell | ||
May
16, 2005 |
/s/
Peter W. May | |
|
Peter
W. May | ||
May
16, 2005 |
/s/
Nelson Peltz | |
|
Nelson
Peltz |