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As filed with the Securities and Exchange Commission on December 19, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NCO GROUP, INC.
(Exact name of Registrant as specified in its charter)
Pennsylvania 23-2858652
------------------------------ ------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification number)
515 Pennsylvania Avenue, Ft. Washington, Pennsylvania 19422
(Address of Principal Executive Offices) (Zip Code)
AMENDED AND RESTATED 1995 STOCK OPTION PLAN
1996 STOCK OPTION PLAN
1996 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
(Full title of the plan)
Michael J. Barrist, President and Chief Executive Officer
NCO Group, Inc
515 Pennsylvania Avenue
Ft. Washington, Pennsylvania 19422
(215) 793-9300
(Name, address, including zip code and telephone number,
including area code, of agent for service)
Copies of Communications To:
Francis E. Dehel, Esquire
Blank Rome Comisky & McCauley
One Logan Square
Philadelphia, Pennsylvania 19103
(215) 569-5500
Fax: (215) 569-5555
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<CAPTION>
CALCULATION OF REGISTRATION FEE
=====================================================================================================================
Proposed Proposed
maximum maximum Amount of
Title of securities Amount to be offering price aggregate registration
to be registered registered(1) per share offering price fee
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<S> <C> <C> <C> <C>
Common Stock, no par value ...... 1,135,210 shares $14.20(2) $16,119,982(2) $4,884.85
=====================================================================================================================
</TABLE>
(1) Plus such indeterminable number of shares as may be issued pursuant to
certain anti-dilution provisions contained in the Plans.
(2) Pursuant to Rule 457(h), based upon the price at which stock options
covered by this Registration Statement may be exercised and, in the case
where such price is not known, upon the average of the high and low sale
prices of the Common Stock, reported on the Nasdaq National Market on
December 16, 1997.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in Item 1 will be
sent or given to employees as specified in Rule 428(b)(1) and are not required
to be filed as part of this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
The documents containing information specified in Item 2 will be sent
or given to employees as specified in Rule 428(b)(1) and are not required to
be filed as part of this Registration Statement.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed with the Commission are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Annual Report on
Form 10-K referred to in (a) above; and
(c) The description of the Company's Common Stock which is
incorporated by reference in the Company's Registration Statement on Form 8-A
under the Exchange Act, including any amendment or report filed for the
purpose of updating such description.
All reports and other documents subsequently filed by the Company
with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, after the date of this Registration Statement but prior to the
filing of a post-effective amendment which indicates that all securities
offered hereunder have been sold or which deregisters all securities then
remaining unsold hereunder, shall be deemed to be incorporated by reference in
this Registration Statement and to be a part hereof from the date of filing of
such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Sections 1741 through 1750 of Subchapter D, Chapter 17, of the
Pennsylvania Business Corporation Law of 1988, as amended (the "BCL"), contain
provisions for mandatory and discretionary indemnification of a corporation's
directors, officers and other personnel, and related matters.
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Under Section 1741, subject to certain limitations, a corporation has
the power to indemnify directors and officers under certain prescribed
circumstances against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred in connection
with an action or proceeding, whether civil, criminal, administrative or
investigative, to which any of them is a party by reason of his being a
representative, director or officer of the corporation or serving at the
request of the corporation as a representative of another corporation,
partnership, joint venture, trust or other enterprise, if he acted in good
faith and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the corporation and, with respect to any criminal
proceeding, had no reasonable cause to believe his conduct was unlawful. Under
Section 1743, indemnification is mandatory to the extent that the officer or
director has been successful on the merits or otherwise in defense of any
action or proceeding if the appropriate standards of conduct are met.
Section 1742 provides for indemnification in derivative actions
except in respect of any claim, issue or matter as to which the person has
been adjudged to be liable to the corporation unless and only to the extent
that the proper court determines upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
the person is fairly and reasonably entitled to indemnity for the expenses
that the court deems proper.
Section 1744 provides that, unless ordered by a court, any
indemnification under Section 1741 or 1742 shall be made by the corporation
only as authorized in the specific case upon a determination that the
representative met the applicable standard of conduct, and such determination
will be made by the board of directors (i) by a majority vote of a quorum of
directors not parties to the action or proceeding; (ii) if a quorum is not
obtainable, or if obtainable and a majority of disinterested directors so
directs, by independent legal counsel; or (iii) by the shareholders.
Section 1745 provides that expenses (including attorney's fees)
incurred by an officer, director, employee or agent in defending a civil or
criminal action or proceeding may be paid by the corporation in advance of the
final disposition of such action or proceeding upon receipt of an undertaking
by or on behalf of such person to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the
corporation.
Section 1746 provides generally that, except in any case where the
act or failure to act giving rise to the claim for indemnification is
determined by a court to have constituted willful misconduct or recklessness,
the indemnification and advancement of expenses provided by Subchapter 17D of
the BCL shall not be deemed exclusive of any other rights to which a person
seeking indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action
in another capacity while holding that office.
Section 1747 grants to a corporation the power to purchase and maintain
insurance on behalf of any director or officer against any liability incurred by
him or her in his or her capacity as officer or director, whether or not the
corporation would have the power to indemnify such person against that liability
under the provisions of Subchapter 17D of the BCL.
Section 1748 and 1749 extend the indemnification and advancement of
expenses provisions contained in Subchapter 17D of the BCL to successor
corporations in fundamental changes and to representatives serving as
fiduciaries of employee benefit plans.
Section 1750 provides that the indemnification and advancement of
expenses provided by, or granted pursuant to, Subchapter 17D of the BCL,
shall, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs and personal representative of such person.
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For information regarding provisions under which a director or
officer of the Company may be insured or indemnified in any manner against any
liability which he or she may incur in his or her capacity as such, reference
is made to the Company's Articles of Incorporation and Bylaws, copies of which
are filed as Exhibits 3.1 and 3.2, respectively, to the Company's Registration
Statement on Form S-1 (Registration No. 333-11745) filed with the SEC on
September 11, 1996, as amended, which provide in general that the Company
shall indemnify its officers and directors to the fullest extent authorized by
law.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
The following exhibits are filed as part of this Registration
Statement or, where so indicated, have been previously filed and are
incorporated herein by reference.
Exhibit No. Description
5.1 Opinion of Counsel regarding legality
10.1(1) Amended and Restated 1995 Stock Option Plan
10.2(1) 1996 Stock Option Plan
10.3(1) 1996 Stock Option Plan for Non-Employee Directors
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Counsel (included as part of Exhibit 5.1)
24.1 Power of Attorney (included on page 5)
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(1) Incorporated by reference from the Company's Registration Statement
on Form S-1 (Registration No. 333-11745) filed with the SEC on
September 11, 1996, as amended.
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933, as amended:
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(ii) To reflect in the prospectus any facts or
events arising after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in the
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or F-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to section 13
or section 15(d) of the Securities Exchange Act of 1934, as amended, that are
incorporated by reference in the Registration Statement.
(2) That for the purpose of determining any liability under
the Securities Act of 1933, as amended, 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 registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, as amended,
each filing of the registrant's annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934, as amended (and, where
applicable, each filing of an employee benefit plan's annual report pursuant
to section 15(d) of the Securities Exchange Act of 1934, as amended) that is
incorporated by reference in the Registration Statement shall be deemed to be
a new Registration Statement relating to the securities offered therein and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment for the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all 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 Ft. Washington, Pennsylvania, on the 16th day
of December, 1997.
NCO GROUP, INC.
By:/s/ Michael J. Barrist
---------------------------------
Michael J. Barrist,
Chairman of the Board, President and Chief
Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Michael J. Barrist and Steven L.
Winokur, and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution or resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments to
this Registration Statement, and to file the same, with all exhibits thereto,
and other documentation in connection therewith, as well as any related
registration statement (or amendment thereto) filed pursuant to Rule 462(b)
promulgated under the Securities Act of 1933 with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and
necessary to enable NCO Group, Inc. to comply with the provisions of the
Securities Act of 1933 and all requirements of the Securities and Exchange
Commission, as fully 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 their substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the date indicated.
SIGNATURE TITLE(S) DATE
- --------------------- -------------------------------- -------------------
/s/Michael J. Barrist Chairman of the Board, President December 16, 1997
- --------------------- and Chief Executive Officer
Michael J. Barrist (principal executive officer)
/s/Charles C. Piola Executive Vice President and December 16, 1997
- -------------------- Director
Charles C. Piola
/s/Steven L. Winokur Executive Vice President of December 16, 1997
- -------------------- Finance, Chief Financial Officer
Steven L. Winokur and Treasurer (principal
financial and accounting officer)
/s/Bernard R. Miller Senior Vice President, December 16, 1997
- -------------------- Development and Director
Bernard R. Miller
/s/Eric S. Siegel Director December 16, 1997
- --------------------
Eric S. Siegel
/s/Allen F. Wise Director December 16, 1997
- --------------------
Allen F. Wise
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EXHIBIT 5.1
Blank Rome Comisky & McCauley
Counselors at Law
One Logan Square
Philadelphia, Pennsylvania 19103-6998
215-569-5500
Fax 215-569-5555
December 17, 1997
NCO Group, Inc.
515 Pennsylvania Avenue
Ft. Washington, Pennsylvania 19422
Re: NCO Group, Inc.
Registration Statement on Form S-8
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Gentlemen:
We have acted as counsel to NCO Group, Inc. (the "Company") in connection
with the Registration Statement on Form S-8 (the "Registration Statement")
filed by the Company with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, relating to the offer and sale of up
to 1,135,210 shares of common stock, no par value (the "Common Stock"), by the
Company pursuant to the Amended and Restated 1995 Stock Option Plan, the 1996
Stock Option Plan and the 1996 Stock Option Plan for Non-Employee Directors,
as amended, (collectively, the "Plans"). This opinion is furnished pursuant to
the requirements of Item 601(b)(5) of Regulation S-K.
In rendering this opinion, we have examined only the following documents:
(i) the Company's Restated and Amended Articles of Incorporation and Bylaws,
(ii) resolutions adopted by the Board of Directors and shareholders of the
Company, (iii) the Registration Statement and (iv) the Plans. We have not
performed any independent investigation other than the document examination
described. Our opinion is therefore qualified in all respects by the scope of
that document examination. We have assumed and relied, as to questions of fact
and mixed questions of law and fact, on the truth, completeness, authenticity
and due authorization of all certificates, documents and records examined and
the genuineness of all signatures. This opinion is limited to the laws of the
Commonwealth of Pennsylvania.
Based upon and subject to the foregoing, we are of the opinion that the
shares of Common Stock of the Company which are being offered and sold by the
Company pursuant to the Registration Statement and the Plans, when sold in the
manner and for the consideration contemplated by the Registration Statement
and the Plans, will be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Sincerely,
-----------------------------------
/s/ BLANK ROME COMISKY & MCCAULEY
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
NCO Group, Inc. on Form S-8 (File No. ) of our report dated March 7,
1997, on our audits of the consolidated financial statements of NCO Group, Inc.
as of December 31, 1996 and 1995, and for the years ended December 31, 1996,
1995, 1994, which report is included in NCO Group, Inc.'s 1996 Annual Report on
Form 10-K.
/s/ COOPERS & LYBRAND L.L.P.
Philadelphia, Pennsylvania
December 18, 1997
