As filed with the Securities and Exchange Commission on September 15, 2003
Registration No. __________
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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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ENESCO GROUP, INC.
(Exact name of registrant as specified in its charter)
ILLINOIS 04-1864170
(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) Identification No.)
ENESCO GROUP, INC.
225 WINDSOR DRIVE
ITASCA, ILLINOIS 60143
(Address of Principal Executive Offices)
ENESCO GROUP, INC. RETIREMENT PROFIT SHARING
PLAN FOR UNION EMPLOYEES
(Full Title of Plan)
M. FRANCES DURDEN
GENERAL COUNSEL
225 WINDSOR DRIVE
ITASCA, ILLINOIS 60143
(630) 875-5300
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of Securities To Amount to be Proposed Maximum Proposed Maximum Amount of Registration
be Registered Registered Offering Price Aggregate Offering Fee(2)
Per Share(2) Price(2)
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Common Stock, Par 25,000 $8.39 $209,750.00 $16.97
Value, $0.125 Per Share
(1)
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the plan to which this registration statement
relates.
(2) Estimated solely for the purposes of calculating the registration fee. Such
estimate has been computed in accordance with Rule 457(h) based on the average
of the high and low quotation for Common Shares on the New York Stock Exchange
on September 10, 2003.
PART I PLAN INFORMATION
This Registration Statement on Form S-8 relates to:
(a) 25,000 shares of Common Stock, which may be issued pursuant to the
Enesco Group, Inc. Retirement Profit Sharing Plan for Union Employees
(the "Plan"); and
(b) an indeterminate amount of interests to be offered or sold pursuant to
the Plan.
Documents describing the Plan, such offerings and such shares and interests
have been or will be given to participants in the Plan, as specified in Rule
428(b)(1) promulgated by the Securities and Exchange Commission (the "SEC")
under the Securities Act. Such documents are not required to be filed with the
SEC, but constitute (along with the documents incorporated by reference into
this Registration Statement pursuant to Item 3 of Part II hereof) a prospectus
that meets the requirements of Section 10(a) of the Securities Act of 1933.
References to the "Company" shall mean Enesco Group, Inc., an Illinois
corporation.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents By Reference.
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms in Washington, D.C., New York, NY and Chicago, IL.
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms. Our SEC filings are also available to the public from the SEC's
web site at http://www.sec.gov. Reports, proxy and information statements and
other information concerning us can also be inspected at the offices of the New
York Stock Exchange, 20 Broad Street, New York, NY 10005. We also maintain a web
site at http://www.enesco.com. Our SEC filings may be viewed on our web site
under the "Investor Relations" section.
The SEC allows us to "incorporate by reference" information into this
Registration Statement, which means that we can disclose important information
to you by referring you to another document filed separately with the SEC. The
information incorporated by reference is considered to be part of this
Registration Statement, and later information that we file with the SEC will
automatically update this Registration Statement. We incorporate by reference
the following documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
as amended, prior to the termination of the offering:
(a) The description of the Company's Common Stock included in its: (i)
Registration Statement on Form 10, dated May 28, 1965, as amended on
Form 8 Amendment No. 1, dated December 9, 1965, and Form 8 Amendment
No. 2, dated September 5, 1986; (ii) Registration Statements on Form
8-A, dated September 8, 1986 and October 30, 1987, both as amended on
Form 8 Amendment No. 1, dated May 6, 1988; (iii) Registration
Statements on Form 8-A, dated September 9, 1998; and (iv) any other
registration statement relating to the Company's Common Stock under
Section 12 of the Exchange Act, including any amendments or reports
filed for the purpose of updating the description of such class of
securities;
(b) The Company's Quarterly Report on Form 10-Q, filed with the SEC on
August 13, 2003 for the quarter ending June 30, 2003.
(c) The Company's Quarterly Report on Form 10-Q, filed with the SEC on May
15, 2003 for the quarter ending March 31, 2003;
(d) The Company's Annual Report on Form 10-K, filed with the SEC on March
27, 2003 for the fiscal year ending December 31, 2002;
(e) The description of the Company's Rights contained in its: (i)
Registration Statements on Form 8-A, dated September 9, 1998; and (ii)
any other registration statement relating to the Company's Rights
under Section 12 of the Exchange Act, including any amendments or
reports filed for the purpose of updating the description of such
Rights.
On June 15, 2002, Arthur Andersen LLP ("Arthur Andersen"), the Company's
independent public accounting firm for the year ended December 31, 2001, was
convicted on federal obstruction of justice charges arising from the U.S.
Government's investigation of Enron Corp. On June 4, 2002, the Company engaged
KPMG LLP as its independent public accountants for the fiscal year 2002. The
Company has not been able to obtain, after reasonable efforts, the written
consent of Arthur Andersen to its naming in this Registration Statement as
having certified the Company's consolidated financial statements for the year
ended December 31, 2001, as required by Section 7 of the Securities Act.
Accordingly, Plan participants will not be able to assert claims against Arthur
Andersen under Section 11 of the Securities Act for any untrue statement of a
material fact contained in the Company's consolidated financial statements for
the year ended December 31, 2001 or any omissions to state a material fact
required to be stated therein.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
M. Frances Durden, General Counsel for the Company, who has rendered an
opinion on the legality of the securities being registered, is paid a salary by
the Company, is a participant in various employee benefit plans of the Company
and owns Common Stock of the Company.
Item 6. Indemnification of Directors and Officers.
Article 7E of the Company's Articles of Incorporation provides that
directors of the Company shall not be personally liable to the Company or its
shareholders for monetary damages for any breach of fiduciary duty as a Director
notwithstanding any provision of law imposing such liability; provided, however,
that the foregoing provision does not eliminate or limit any liability of a
Director: (i) for any breach of the Director's duty of loyalty to the Company or
its shareholders; (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) under Section 8.65
of the Illinois Business Corporation Act of 1983, as amended (the "IBCA"); or
(iv) for any transaction from which the director derived an improper personal
benefit.
Section 8.75 of the IBCA provides that a corporation shall have the power
to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he or she is
or was a director, officer, employee or agent of the corporation, or who is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines, and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such person acted
in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. Under certain circumstances, Section 8.75 permits a
corporation to indemnify its directors, officers, employees and agents against
expenses incurred in connection with the defense or settlement of shareholder
derivative actions. Section 8.75 also provides that the corporation may purchase
insurance on behalf of any such director, officer, employee or agent.
Substantially similar provisions that require such indemnification are contained
in Article V of the Company's By-laws, which are incorporated herein by
reference.
Subject to the limitations subscribed below, Section 3.7 of the Enesco
Group, Inc. Retirement Trust (which funds and forms a part of the Plan) provides
for the indemnification of any director, officer and specified key employees of
the Company against all expenses, as defined therein, actually or reasonably
incurred by any of them in connection with any claim asserted against him or
her, or in connection with any action, suit or proceeding, civil or criminal, in
which any of them may be involved as a party, by reason of his or her having
served as a member of the Administrative Committee, the Review Committee or in
another Plan Administration capacity ("Plan Capacity"). Indemnification under
the
Retirement Trust is subject to the condition that the person in question acted
in such Plan Capacity in good faith in the reasonable belief that his or her
actions were in the best interests of the Plan.
The Company has director and officer liability insurance and ERISA
fiduciary insurance covering certain expenditures that might arise in connection
with the foregoing indemnifications.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The exhibits listed below are filed herewith or are incorporated herein by
reference to other filings. The Plan is intended to be qualified under Section
401(a) of the Internal Revenue Code of 1986, as amended. The Plan is maintained
through adoption of a prototype plan document sponsored by Vanguard Fiduciary
Trust Company (the "Prototype Sponsor"). The Company has been assured by the
Prototype Sponsor that the form of document which has been adopted by the
Company to implement the Plan has been (and any future amendments thereto) will
be submitted by the Prototype Sponsor to the Internal Revenue Service in a
timely manner and all changes required by the IRS in order to maintain the
qualified status of the plan will be made.
EXHIBIT NO. DESCRIPTION OF EXHIBIT
4.1 Vanguard Returns Chart
4.2 Articles of Incorporation of the Company
4.3 By-laws of the Company
5.1 & 23.1 Opinion & consent of M. Frances Durden
23.2 Consent of KPMG LLP
23.3 The Company was unable to obtain the consent of Arthur
Andersen LLP. See information above in Part II, Item 3
under the heading "Incorporation of Documents by
Reference".
24.1 Power of Attorney
Item 9. Undertakings
The Company hereby undertakes:
(a) 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; (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 (i) and (ii) do not apply if
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 Exchange Act that are incorporated by reference in this
Registration Statement.
(b) 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.
(c) 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.
(d) That, for the purpose 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 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. 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 provisions described in Item 6 of this
Registration Statement, 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
administrator of the Enesco Group, Inc. Retirement Profit Sharing Plan for Union
Employees 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 Village of Itasca, State of Illinois, on September 15, 2003.
Enesco Group, Inc.
/s/ Daniel DalleMolle
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By: Daniel DalleMolle
Chief Executive Officer &
President
POWER OF ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS: That the undersigned officers and
directors of Enesco Group, Inc., an Illinois corporation, do hereby constitute
and appoint each of Daniel DalleMolle, Thomas F. Bradley and M. Frances Durden,
the lawful attorneys-in-fact and agents with full power and authority to do any
and all acts and things and to execute any and all instruments which said
attorneys and agents, and any one of them, determine may be necessary or
advisable or required to enable said corporation to comply with the Securities
Act and any rules or regulations or requirements of the SEC
in connection with this Registration Statement. Without limiting the generality
of the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
that all said attorneys and agents, or any one of them, shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated. Pursuant to the requirements of the
Securities Act, this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
September 15, 2003 /s/ Anne-Lee Verville
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By Anne-Lee Verville
Chairman of the Board
September 15, 2003 /s/ Daniel DalleMolle
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By Daniel DalleMolle
Chief Executive Officer
September 15, 2003 /s/ Eugene Freedman
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By Eugene Freedman
Director
September 15, 2003 /s/ John F. Cauley
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By John F. Cauley
Director
September 15, 2003 /s/ George R. Ditomassi
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By George R. Ditomassi
Director
September 15, 2003 /s/ Judith R. Haberkorn
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By Judith R. Haberkorn
Director
September 15, 2003 /s/ Donald L. Krause
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By Donald L. Krause
Director
September 15, 2003 /s/ Donna Brooks Lucas
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By Donna Brooks Lucas
Director
September 15, 2003 /s/ Thane A. Pressman
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By Thane A. Pressman
Director
EXHIBIT INDEX
Exhibit No. Description of Exhibit
4.1 Vanguard Returns Chart
4.2 Articles of Incorporation of the Company
4.3 By-laws of the Company
5.1 & 23.1 Opinion & consent of M. Frances Durden
23.2 Consent of KPMG LLP
24.1 Power of Attorney (included on the signature page hereof)