<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 3, 2000
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MCM CAPITAL GROUP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
DELAWARE 48-1090909
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
500 WEST FIRST STREET, HUTCHINSON, KANSAS 67501-5222
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICE) (ZIP CODE)
MCM CAPITAL GROUP, INC. 1999 EQUITY PARTICIPATION PLAN
(FULL TITLE OF PLAN)
ROBERT E. KOE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
MCM CAPITAL GROUP, INC.
500 WEST FIRST STREET
HUTCHINSON, KANSAS 67501-5222
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(800) 759-0327
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE PRICE PER SHARE(2) AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PRICE(2) FEE
<S> <C> <C> <C> <C>
Common Stock 250,000 $1.8906 $472,650 $125
$.01 par value
</TABLE>
(1) In the event of a stock split, stock dividend or similar transaction
involving the Registrant'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 the purpose of calculating the amount of the
registration fee, pursuant to Rules 457(c) and 457(h) of the Securities
Act of 1933 (the "Securities Act"), on the basis of the average of the
high and low prices of the Registrant's Common Stock on April 28, 2000.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
We will deliver the documents containing the information specified in
Part I, Items 1 and 2, to participants in accordance with Form S-8 and Rule 428
under the Securities Act of 1933, as amended (the "Securities Act"). 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 have been filed by MCM Capital Group, Inc. (the
"Registrant") with the Securities and Exchange Commission pursuant to the
Securities Act of 1933 or the Securities Exchange Act of 1934 and are hereby
incorporated by reference into this Registration Statement:
(a) The Registrant's Form 10-K Report for the year ended December
31, 1999 and its Form 10-K/A Report filed May 1, 2000;
(b) The Registrant's Form 8-K Report dated January 13, 2000; and
(c) The description of the Registrant's capital stock contained in
the Registrant's Registration Statement on Form 8-A, dated
June 23, 1999, filed pursuant to Section 12(g) of the
Securities Exchange Act of 1934.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing 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. Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable.
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
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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 this section 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 which 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.
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<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
3.1 Amended and Restated Certificate of Incorporation of the
Registrant (1)
3.2 Bylaws of the Registrant(1)
5 Opinion of Snell & Wilmer L.L.P.
10.7 MCM Capital Group, Inc. 1999 Equity Participation Plan(1)
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Snell & Wilmer L.L.P. (Included in Exhibit 5)
</TABLE>
-----------
(1) Incorporated by reference to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-77483, effective
July 8, 1999).
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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective 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, Form S-8 or Form F-3, and the
information required to be included in a
post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished
to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be 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.
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(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (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) 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 such Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than payment by
the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed
in the Act and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona, on May 2, 2000.
MCM CAPITAL GROUP, INC., a Delaware corporation
By: /s/ Robert E. Koe
--------------------------------------------
Robert E. Koe
President and Chief Executive Officer
POWER OF ATTORNEY
The Registrant and each person whose signature appears below
constitutes and appoints Robert E. Koe, Gregory G. Meredith and Eric D. Kogan,
and any agent for service named in this Registration Statement and each of them,
his, her, or its true and lawful attorney-in-fact and agents, with full power of
substitution and resubstitution, for him, her, or it and in his, her, or its
name, place and stead, in any and all capacities, to sign and file (i) any and
all amendments (including post-effective amendments) to this Registration
Statement, with all exhibits thereto, and other documents in connection
therewith, and (ii) a registration statement, and any and all amendments
thereto, relating to the offering covered hereby filed under Rule 462(b) under
the Securities Act of 1933, 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 or
necessary to be done in and about the premises, as fully to all intents and
purposes as he, she, or it might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
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.
<TABLE>
<CAPTION>
Name and Signature Title Date
- ------------------ ----- ----
<S> <C> <C>
/s/ Robert E. Koe President, Chief Executive Officer May 2, 2000
- ----------------------------- and Director
Robert E. Koe (Principal Executive Officer)
/s/ R. Brooks Sherman, Jr. Chief Financial Officer and May 2, 2000
- ----------------------------- Treasurer
R. Brooks Sherman, Jr. (Principal Financial and Accounting
Officer)
/s/ Frank Chandler Director May 2, 2000
- -----------------------------
Frank Chandler
/s/ Eric D. Kogan Director May 2, 2000
- -----------------------------
Eric D. Kogan
/s/ Peter W. May Director May 2, 2000
- -----------------------------
Peter W. May
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ James D. Packer Director May 2, 2000
- -----------------------------
James D. Packer
/s/ Nelson Peltz Director May 2, 2000
- -----------------------------
Nelson Peltz
/s/ Robert M. Whyte Director May 2, 2000
- -----------------------------
Robert M. Whyte
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description Method of Filing
- -------------- ----------- ----------------
<S> <C> <C>
3.1 Restated Certificate of Incorporated by reference to the
Incorporation of the Registrant Registrant's Registration Statement
on Form S-1 (Registration No.
333-77483, effective July 8, 1999).
3.2 Bylaws of the Registrant Incorporated by reference to the
Registrant's Registration Statement
on Form S-1
(Registration No. 333-77483,
effective July 8, 1999).
5 Opinion of Snell & Wilmer L.L.P. Filed herewith
10.7 MCM Capital Group, Inc. 1999 Equity Incorporated by reference to the
Participation Plan Registrant's Registration Statement
on Form S-1
(Registration No. 333-77483,
effective July 8, 1999).
23.1 Consent of Ernst & Young LLP, Filed herewith
Independent Auditors
23.2 Consent of Snell & Wilmer L.L.P. Included in Exhibit 5
</TABLE>
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<PAGE> 1
EXHIBIT 5
May 2, 2000
MCM Capital Group, Inc.
500 West First Street
Hutchinson, Kansas 67501-5222
RE: MCM CAPITAL GROUP, INC. 1999 EQUITY PARTICIPATION PLAN
Ladies and Gentlemen:
We have acted as counsel to MCM Capital Group, Inc., a Delaware
corporation (the "Company"), in connection with its Registration Statement on
Form S-8 (the "Registration Statement") filed under the Securities Act of 1933,
as amended, relating to the registration of 250,000 shares of its Common Stock,
$.01 par value (the "Shares"), issuable pursuant to the Company's 1999 Equity
Participation Plan (the "Plan").
In that connection, we have examined such documents, corporate records,
and other instruments as we have deemed necessary or appropriate for purposes of
this opinion, including the Certificate of Incorporation, as amended, and the
Bylaws of the Company.
Based upon the foregoing, we are of the opinion that the Shares, when
issued and sold in accordance with the terms of the Plan, will be validly
issued, fully paid, and nonassessable.
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 the other
matters in effect on the date hereof, and we assume no obligation to review 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.
Very truly yours,
/s/ SNELL & WILMER L.L.P.
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EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the MCM Capital Group, Inc. 1999 Equity Participation
Plan of our report dated February 25, 2000 (except for Note 16 as to which the
date is March 31, 2000) with respect to the consolidated financial statements
of MCM Capital Group, Inc. included in the Annual Report (Form 10-K) for the
year ended December 31, 1999.
/s/ Ernst & Young LLP
Ernst & Young LLP
Kansas City, Missouri
May 2, 2000
