As filed with the Securities and Exchange Commission on May 21, 2004
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
ENESCO GROUP, INC.
(Exact name of registrant as specified in its charter)
ILLINOIS 04-1864170
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
ENESCO GROUP, INC.
225 WINDSOR DRIVE
ITASCA, ILLINOIS 60143
(Address of Principal Executive Offices)
1999 NON-EMPLOYEE DIRECTOR STOCK PLAN, AS AMENDED
(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)
CALCULATION OF REGISTRATION FEE
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)
---------------------- ------------ ---------------- ------------------ ----------------------
Common Stock, Par
Value, $0.125 Per
Share (1) 200,000 $8.85 $1,770,000 $224.26
---------------------- ------------ ---------------- ------------------ ----------------------
(1) Pursuant to Rule 416 of the Securities Act of 1933, this Registration
Statement also covers (i) such additional shares as may be required to be issued
under the provisions of the 1999 Non-Employee Director Stock Plan, as amended
and (ii) certain rights pursuant to that certain Rights Agreement between Enesco
and Chasemellon Shareholder Services dated July 22, 1998, which rights may only
be transferred with share of Enesco common stock (unless certain events
specified in the Rights Agreement occur).
(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 May 19, 2004.
(3) This Registration Statement registers additional shares of Enesco common
stock issuable pursuant to the 1999 Non-Employee Director's Stock Plan, as
amended, for which a registration statement on Form S-8 (File No. 333-75345) is
currently effective. Accordingly, pursuant to Instruction E of Form S-8, the
registration fee is being paid only with respect to the additional shares
covered by this Registration Statement.
EXPLANATORY NOTE
Enesco filed a registration statement on Form S-8 (File No.
333-75345) to register 100,000 shares of common stock issuable under the 1999
Non-Employee Directors Stock Plan. The prior registration statement is still
effective. Enesco is filing this Registration Statement to register 200,000
additional shares of common stock issuable pursuant to the 1999 Non-Employee
Directors Stock Plan, as amended.
PART I PLAN INFORMATION
This Registration Statement on Form S-8 relates to:
(a) 200,000 shares of Common Stock, which may be issued
pursuant to the 1999 Non-Employee Director Stock Plan,
as amended (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 "Enesco" 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 Enesco'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 Enesco'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) Enesco's Annual Report on Form 10-K, filed with the SEC on
March 12, 2004 for the fiscal year ended December 31, 2003;
(c) Enesco's Current Report on Form 8-K filed with the SEC on
April 21, 2004;
(d) Enesco's Current Report on Form 8-K filed with the SEC on May
7, 2004;
(e) Enesco's Quarterly Report on Form 10-Q, filed with the SEC on
May 10, 2004 for the quarter ended March 31, 2004; and
(f) The description of Enesco's Rights contained in its: (i)
Registration Statements on Form 8-A, dated September 9, 1998;
and (ii) any other registration statement relating to Enesco'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"), Enesco'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, Enesco engaged KPMG
LLP as its independent public accountants for the fiscal year 2002. Enesco 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
Enesco'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
Enesco'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 Enesco, who has rendered an
opinion on the legality of the securities being registered, is paid a salary by
Enesco, is a participant in various employee benefit plans of Enesco and owns
Enesco Common Stock.
Item 6. Indemnification of Directors and Officers.
Article 7E of Enesco's Articles of Incorporation provides that
directors of Enesco shall not be personally liable to Enesco 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 Enesco 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 Enesco's By-laws, which are incorporated herein by
reference.
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.
EXHIBIT NO. DESCRIPTION OF EXHIBIT
4.1 1999 Non-Employee Directors Stock Plan, as amended
5.1 & 23.1 Opinion & consent of M. Frances Durden
23.2 Consent of KPMG LLP
23.3 Enesco was unable to obtain the consent of
Arthur Andersen LLP. See information above
in Part II, Item 3 under the heading
"Incorporation of certain Documents By
Reference".
24.1 Power of Attorney
Item 9. Undertakings
Enesco 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 Enesco 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 Enesco'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 Enesco
pursuant to the provisions described in Item 6 of this
Registration Statement, or otherwise, Enesco 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 Enesco of expenses incurred or paid by a director,
officer or controlling person of Enesco 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, Enesco 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 undersigned 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 May 21, 2004.
Enesco Group, Inc.
/s/ Thomas F. Bradley
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By: Thomas F. Bradley
Interim Chief Executive Officer
And Chief Financial Officer
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 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.
May 21, 2004 /s/ Anne-Lee Verville
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By Anne-Lee Verville
Chairman of the Board
May 21, 2004
/s/ Eugene Freedman
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By Eugene Freedman
Director
May 21, 2004
/s/ George R. Ditomassi
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By George R. Ditomassi
Director
May 21, 2004
/s/ Judith R. Haberkorn
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By Judith R. Haberkorn
Director
May 21, 2004
/s/ Donald L. Krause
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By Donald L. Krause
Director
May 21, 2004
/s/ Donna Brooks Lucas
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By Donna Brooks Lucas
Director
May 21, 2004
/s/ Hector J. Orci
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By Hector J. Orci
Director
May 21, 2004
/s/ Thane A. Pressman
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By Thane A. Pressman
Director
EXHIBIT INDEX
Exhibit No. Description of Exhibit
4.1 1999 Non-Employee Director Stock Plan, as amended
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)