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)
MIDLAND
CREDIT MANAGEMENT, INC. EXECUTIVE NONQUALIFIED EXCESS 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
W. 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 |
|
Deferred
Compensation Obligations |
6,000,000 |
$1.00 |
$6,000,000 |
$706.20 |
|
(1) |
The
Deferred Compensation Obligations are unsecured obligations of Encore
Capital Group Inc. to pay deferred compensation in the future in
accordance with the terms of the Midland Credit Management, Inc. Executive
Nonqualified Excess Plan. |
|
(2) |
Computed
in accordance with Rule 457(h) under the Securities Act of l933, as
amended, solely for the purpose of calculating the registration
fee. |
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 period 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. |
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.
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
The
deferred compensation obligations being registered represent the unsecured
general obligations (the “Obligations”) of Encore Capital Group, Inc. (the
“Company”) to make future payments to the participants in the Midland Credit
Management, Inc. Executive Nonqualified Excess Plan (the “Plan”) from a rabbi
trust established by the Company and then from the general assets of the
Company. The Obligations consist of the Company’s commitment under the Plan to
deliver at a future date any of the following:
| · |
compensation
the receipt of which the participants have elected to defer under the
terms of the Plan, |
| · |
matching
credits to participants’ Plan accounts made by the Company or its
affiliates, |
| · |
discretionary
credits to participants’ Plan accounts made by the Company or its
affiliates, and |
| · |
earnings
on the foregoing amounts based on a notional investment
measurement. |
The
amount of compensation to be deferred by each participant will be determined in
accordance with the Plan based on the elections of the participant and will be
credited to a separate bookkeeping account in the name of the participant. The
participant may select from available hypothetical investment funds. The
performance of the hypothetical investment funds will be used to measure the
hypothetical rate of return on the participant’s account under the Plan. The
applicable hypothetical rate of return, whether positive or negative, will be
applied to the participant’s account to determine its value. The hypothetical
investment fund will be used only for the purpose of calculating hypothetical
returns, and the amounts in participants’ Plan accounts will not actually be
invested in the selected investment media. Amounts that the participant elects
to defer under the Plan will be vested immediately. On the other hand, Company
matching contributions vest on a schedule determined by the participant’s tenure
with the Company: 30% vests after one year of service, 60% vests after two years
of service and 100% vests after three years of service; and Company
discretionary contributions generally vest over a period of three years
following the contribution: 30% vests in the first year, 60% vests in the second
year and 100% vests after the third year.
The
Obligations are payable, at the option of the participant, in approximately
equal annual installments over a designated term no longer than 10 years or a
cash lump-sum distribution upon a Qualifying Distribution Event, which generally
includes a participant’s death, disability or termination of employment with the
Company and all of its affiliates. Under certain circumstances, the Company will
allow the participant to make certain withdrawals from their account prior to a
Qualifying Distribution Event.
The
Obligations are unsecured general obligations of the Company to make future
payments to participants in accordance with the terms of the Plan. Obligations
will rank without preference with other unsecured and unsubordinated
indebtedness of the Company from time to time outstanding and are, therefore,
subject to the risks of the Company’s insolvency. Although the Company has
established a grantor, or “rabbi,” trust which holds assets that are used solely
to pay benefits to Plan participants, participants do not have any preferential
right to any assets in the trust. In the event of the Company’s insolvency or
bankruptcy, the trust assets are treated like other corporate assets of the
Company’s and are subject to the claims of the Company’s creditors.
A
participant’s rights to any amounts credited to his accounts may not be
alienated, sold, transferred, assigned, pledged, attached or otherwise
encumbered by the participant, except in the case of a qualified domestic
relations order, as such term is described in Section 414(p) of the Internal
Revenue Code of 1986 (the “Code”). Otherwise, a participant’s rights to any
amounts credited to his accounts may only pass upon the participant’s death to a
beneficiary designated by the participant in accordance with the terms of the
Plan. The Obligations are not convertible into any other security of the
Company. The Company reserves the right to amend the Plan, at any time, so long
as it does not reduce any participant’s account and it reserves the right to
terminate the Plan to the extent permitted by the Code. The Company’s
acquisition by or merger into any other employer will not automatically
terminate the Plan; rather, the Plan will be automatically assumed by the
successor, subject to the successor’s right to terminate the Plan.
Obligations
in an aggregate principal amount of $6 million are being registered under the
Plan. Further amounts may be registered and issued as new or existing Plan
participants elect to defer portions of their compensation or the Company elects
to make discretionary contributions in subsequent years.
A copy of
the Plan is filed as Exhibit 4.1 hereto and is incorporated herein by reference.
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.
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
7. Exemption
From Registration Claimed
Not
Applicable.
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;
(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.
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
EXHIBIT
INDEX
|
Exhibit
Number
|
Description
and Method of Filing
|
|
4.1
|
Midland
Credit Management, Inc. Executive Nonqualified Excess Plan (incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K
filed on August 14, 2002).
|
|
4.2
|
Amendment
to Midland Credit Management, Inc. Executive Nonqualified Excess Plan
(incorporated by reference to Exhibit 10.21 to the Company’s Annual Report
on Form 10-K for the year ended December 31, 2003 filed on March 2,
2004).
|
|
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).
|
9