SEC Info℠

Home

Search

My Interests

Help

Sign In

Please Sign In

Wendy's Co, et al. – ‘SC 13D/A’ on 4/23/07 re: Encore Capital Group Inc – EX-16

On:  Monday, 4/23/07, at 9:33am ET   ·   Accession #:  930413-7-3699   ·   File #:  5-58347

Previous ‘SC 13D’:  ‘SC 13D/A’ on 3/28/06   ·   Next:  ‘SC 13D/A’ on 5/11/07   ·   Latest:  ‘SC 13D/A’ on 4/10/08

in

this entire Filing. an “Entity” Search.

Show

Documents searched

and

each “hit”. the 1st “hit”.

↓↑Hints

 Text Wildcards:  ? (any letter/digit),  * (many).  Search Logic:  for Documents:  & (and),  | (or);  for Text:  | (anywhere),  "(&)" (near).  Details... 

  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 4/23/07  Wendy’s Co                        SC 13D/A               2:250K Encore Capital Group Inc          Command Financial
          Madison West Associates Corp.
          Nelson Peltz
          Peter W. May

Document/Exhibit                   Description                      Pages   Size 

 1: SC 13D/A    Amendment to General Statement of Beneficial        HTML    105K 
                          Ownership                                              
 2: EX-16       Letter re: Change in Certifying Accountant          HTML    128K 

Exhibit 16

STOCK PURCHASE AGREEMENT


between


JCF FPK I LP,

as Buyer

and


TRIARC COMPANIES, INC.,

MADISON WEST ASSOCIATES CORP.,

PELTZ FAMILY LIMITED PARTNERSHIP,

THE LENI AND PETER MAY FAMILY FOUNDATION,

JON MAY,

LESLIE MAY BLAUNER,

C. P. INTERNATIONAL INVESTMENTS LIMITED, and

AMY SCHORR

as Sellers

Dated as of April 20, 2007

STOCK PURCHASE AGREEMENT

                    STOCK PURCHASE AGREEMENT, dated as of April 20, 2007 (this “Agreement”), between JCF FPK I LP (the “Buyer”), and TRIARC COMPANIES, INC., MADISON WEST ASSOCIATES CORP., PELTZ FAMILY LIMITED PARTNERSHIP, THE LENI AND PETER MAY FAMILY FOUNDATION, JON MAY, LESLIE MAY BLAUNER, C. P. INTERNATIONAL INVESTMENTS LIMITED, and AMY SCHORR (each, a “Seller” and, collectively, the “Sellers”).

                    WHEREAS, on the terms and subject to the conditions set forth below, Buyer desires to acquire from Sellers, and Sellers desire to sell to Buyer an aggregate of 5,737,032 shares (collectively, the “Seller Shares”) of common stock, par value $.01 per share, of Encore Capital Group, Inc., a Delaware corporation (the “Company”), which Seller Shares constitute all of the shares of common stock owned by Sellers, in exchange for the Purchase Price (as defined below);

                    NOW, THEREFORE, in consideration of the premises and agreements set forth herein, the adequacy of which is hereby acknowledged, the parties hereto agree as follows:

                    1.           Purchase and Sale of Seller Shares. Upon the terms and subject to the conditions set forth in this Agreement, Buyer agrees to purchase the number of Seller Shares from each Seller set forth opposite its name on Schedule 1 hereto, and each Seller agrees to sell to Buyer (such purchase and sale referred to herein as the “Share Purchase”), the number of Seller Shares set forth opposite its name on Schedule 1 hereto for a purchase price in cash of $9.75 per share (the “Per Share Price”), which corresponds to an aggregate purchase price in cash of $55,936,062.00 (the “Aggregate Purchase Price”).

                    2.           The Closing. Upon the terms and subject to the conditions set forth in this Agreement, the closing of the Share Purchase (the “Closing”) shall take place on May 10, 2007 (the “Closing Date”), at such place as the parties may mutually agree. At the Closing, the following shall occur:

                    (a)           Buyer shall deliver to each Seller:

2

                    3.           Representations and Warranties of Seller. Each Seller, severally and not jointly, represents and warrants to Buyer as of the date of this Agreement and as of the Closing Date, as follows:

3

4

5

                    4.            Representations and Warranties of Buyer. Buyer represents and warrants to each Seller as follows:

6

                    5.           Sellers’ Covenant. The Sellers hereby agree that at or prior to Closing, they shall assign all their right, title and interest in the registration rights agreement between MCM Capital Group, Inc. and the Initial Stockholders named therein dated as of February 21, 2002 and the amended and restated registration rights agreement between MCM Capital Group,

7

Inc. and the several stockholders listed therein dated as of October 31, 2000, as amended by the First Amendment thereto dated March 13, 2001 (together, the “Registration Rights Agreements”) to the Buyer in accordance with the applicable section of each of the Registration Rights Agreements pursuant to an assignment substantially in the form of Exhibit B.

                    6.            Conditions to Closing.

8

9

10

                    IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.

11

12

Schedule 1

Exhibit A

CUSTODY AGREEMENT AND IRREVOCABLE POWER OF ATTORNEY

          CUSTODY AGREEMENT AND IRREVOCABLE POWER OF ATTORNEY, dated as of April 20, 2006 (this “Agreement”), among American Stock Transfer & Trust Company, as custodian (the “Custodian”), Brian Schorr, Stuart Rosen and David Barnett, as attorneys-in-fact (individually, an “Attorney-In-Fact”, and collectively, the “Attorneys-In-Fact”), the undersigned beneficial owners (the “Security Holders”) of Common Stock (as defined below), and JCF FPK I LP (the “Buyer”).

          WHEREAS, the Security Holders have agreed to sell to the Buyer, shares of Common Stock, $.01 par value per share (the “Common Stock”) of Encore Capital Group, Inc., a Delaware corporation (the “Company”), pursuant to a Stock Purchase Agreement, dated as of April 20, 2007 (the “Stock Purchase Agreement”), between the Buyer and the Security Holders.

          NOW THEREFORE, in consideration of the mutual promises, covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

          1.           The Security Holders hereby agree to establish an escrow account with the Custodian into which the shares of Common Stock to be sold by the Security Holders pursuant to the Stock Purchase Agreement (the “Shares”) shall be deposited and held by the Custodian pending the disposition thereof in accordance with Section 3 below.

          2.           (a)           Each Security Holder hereby irrevocably makes, constitutes and appoints the Attorneys-In-Fact, or any of them, and each of their substitutes appointed pursuant to Section 2(b) hereof, the true and lawful attorneys-in-fact of such Security Holder, each with full power and authority to act together or alone, including full power of substitution, in the name of and for and on behalf of such Security Holder:

A-1

                        (b)           Each of the Attorneys-In-Fact shall have the full power to make and substitute any person in their place and stead, and the Security Holders hereby ratify and confirm all actions that each of the Attorneys-In-Fact and any substitute or substitutes shall take by virtue of these presents.

          3.           (a)           A custody arrangement is hereby established by the Security Holders with the Custodian with respect to any of the following deposited with the Custodian: any Shares represented by certificates or DWAC Shares; and the Custodian is hereby instructed to act in accordance with this Agreement and any amendments or supplements hereto authorized by the Attorneys-In-Fact and the Custodian.

A-2

                        (b)           There are herewith delivered to the Custodian, and the Custodian hereby acknowledges receipt of the following, which collectively represent all of the Shares: certificates or DWAC Shares representing Shares, each accompanied by duly executed stock powers with respect to the Shares. Such certificates and stock powers are to be held by the Custodian for the account of the Security Holders and are to be disposed of by the Custodian in accordance with this Agreement.

                        (c)           The Custodian is authorized and directed by each Security Holder:

                         (d)           In the event at any time after the termination of the Stock Purchase Agreement without a sale of the Shares, the Attorneys-In-Fact, or any of them, deliver a notice to the Custodian and the Buyer stating that the sale pursuant to the Stock Purchase Agreement will not proceed, the Power of Attorney and all authority conferred hereby shall then terminate on such date, and the Custodian shall deliver to each Security Holder as soon as practicable after such date, all certificates, DWAC Shares, and stock powers deposited by such Security Holder. Securities returned to the Security Holders pursuant to the foregoing sentence shall be returned with any related stock powers, and any new certificates issued to the Security Holders with respect to any restricted securities included within the foregoing shall bear any appropriate legend reflecting the unregistered status thereof under the Act.

          4.           The Power of Attorney and all authority conferred hereby are granted and conferred and the stock powers deposited with the Custodian and the Shares represented by certificates or DWAC Shares deposited with the Custodian, held in custody for each Security

A-3

Holder under this Agreement are subject to the interests of the Buyer and in consideration of those interests, and for the purpose of completing the transaction contemplated by the Stock Purchase Agreement; the arrangements made by such Security Holder for such custody, and the appointment by such Security Holder of the Attorneys-In-Fact hereby, are an agency coupled with an interest and all authority conferred hereby shall be to that extent irrevocable; the obligations of such Security Holder hereunder shall not be terminated by any act of the Security Holder (except as provided in Section 3(d) above) or by operation of law, whether by the death, disability, incompetence or incapacity of the Security Holder, if the Security Holder is an individual, or, if the Security Holder is an estate, foundation or trust, by the death or incapacity of any executor or trustee or the termination of such estate, foundation or trust, or if the Security Holder is a partnership, corporation or other entity, by the dissolution or liquidation of such partnership, corporation or other entity, or by the occurrence of any other event; if the Security Holder or any such executor or trustee should die or become disabled, incompetent or incapacitated, or if any such estate, foundation or trust should be terminated, or if any such partnership, corporation or other entity should be dissolved or liquidated, or if any other such event should occur, before the delivery of the Shares hereunder to the Buyer or the completion of the sale of the Shares as contemplated hereby, certificates representing the Shares shall be delivered to the Buyer by or on behalf of the Security Holder and the sale of the Shares shall be completed in accordance with the terms and conditions of this Agreement and all other actions required to be taken under the Stock Purchase Agreement and this Agreement shall be taken by the Attorneys-In-Fact, or either one of them, or the Custodian, as required; and actions taken by the Attorneys-In-Fact, or either of them, or the Custodian, shall be as valid as if such death, disability, incompetence, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian, the Attorneys-in-Fact, or any of them, shall have received notice of such death, disability, incompetence, incapacity, termination, dissolution or other event.

          5.           Until payment of the purchase price for the Shares sold pursuant to the Stock Purchase Agreement has been made to the Security Holders, the Security Holders shall remain the owners of (and shall retain the right to receive dividends and distributions on, and to vote) such Shares. Notwithstanding the foregoing, the Custodian shall have no duty or obligation with respect to the foregoing sentence. Until such payment in full has been made or until the Stock Purchase Agreement has been terminated (including, without limitation, as contemplated by Section 3(d) above), each Security Holder agrees that it will not give, assign, sell, agree to sell, pledge, hypothecate, grant any lien on, transfer, contract with respect to or otherwise dispose of the Shares or any interests therein.

          6.           Each Security Holder and the Buyer (each a “Covenantor”) hereby represents, warrants and covenants, severally and not jointly, as follows:

                       (a)           Such Covenantor, having full right, power and authority to do so, has duly executed and delivered this Agreement, and has and at all times through the Closing Date will have full right, power and authority to carry out all applicable terms and provisions hereof, and to make all the representations, warranties and covenants contained herein;

                       (b)           This Agreement is the valid, legal and binding agreement of such Covenantor and is enforceable against such Covenantor in accordance with its terms, except as

A-4

such enforceability may be limited by general principles of equity, whether applied in a court of law or a court of equity, and by bankruptcy, insolvency and similar laws affecting creditors’ rights and remedies generally. No consent, approval, authorization or agreement of any person, party, entity, court or government is required to be obtained by such Covenantor in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.

          7.           If applicable, the representations, warranties and covenants of the Security Holders and the Buyer in this Agreement and the Stock Purchase Agreement are made for the benefit of, and may be relied upon by, the Attorneys-In-Fact, the Custodian and its counsel, counsel for the Security Holders, and the Buyer and its representatives, agents and counsel.

          8.           The Attorneys-In-Fact and the Custodian shall be entitled to act and rely upon any written statement, request, notice or instructions with respect to this Agreement and the powers and authorizations granted hereunder by the Security Holders, not only as to the authorization, validity and effectiveness thereof, but also as to truth and acceptability of any information therein contained. Notwithstanding the preceding sentence, the Custodian, at its request, shall be entitled to written confirmation from the Buyer as to any statement or notice to the Custodian with respect to the Stock Purchase Agreement and such provisions thereunder. Any statement, request, notice or instructions with respect to this Agreement to be given by the Buyer may be given by the Buyer or by an authorized officer of the Buyer on its behalf and the Custodian may rely conclusively on any such statement, request, notice or instruction believed by it to be signed by the proper party or parties.

          9.           The Security Holders and the Buyer agree that the Custodian and the Security Holders agree that the Attorneys-In-Fact may consult with counsel of their own choice (who, in the case of the Custodian, may be an employee of the Custodian or outside counsel for the Custodian, or, in the case of the Attorneys-In-Fact, may be an employee of any Security Holder or outside counsel for any Security Holder), and the Custodian and the Attorneys-In-Fact shall have full and complete authorization and protection for any action taken, suffered or omitted by the Custodian or the Attorneys-In-Fact hereunder in good faith and in reliance upon the advice or opinion of such counsel.

          10.         It is understood that the Custodian and the Attorneys-In-Fact assume no responsibility or liability to any person other than to deal with the Shares deposited with the Custodian and the proceeds from the sale of the Shares in accordance with the express provisions hereof. The Custodian and the Attorneys-In-Fact (in their capacity as such) make no representations with respect to and shall have no responsibility, except as herein expressly provided, for any aspect of the sale of Shares pursuant to the Stock Purchase Agreement, and shall not be liable or responsible for any error of judgment or for any action taken, suffered or omitted or for any mistake of fact or law except for their own gross negligence or bad faith (each as finally determined by a court of competent jurisdiction). No implied covenants or obligations shall be read into this Agreement against the Custodian or the Attorneys-In-Fact. None of the provisions contained in this Agreement shall require the Custodian or the Attorneys-In-Fact to expend or risk their own funds or otherwise incur personal financial liability in the performance of any of their duties, or in the exercise of any of their rights or powers, hereunder.

A-5

          11.         The Security Holders hereby agree, severally and not jointly, to indemnify the Custodian for and to hold the Custodian harmless from and against any and all losses, claims, damages, settlements, costs, expenses, judgments, fines, penalties or liabilities incurred on its part arising out of or in connection with the execution or delivery of this Agreement or acting as the Custodian pursuant hereto, as well as the cost and expenses of investigating and defending any such losses, claims, damages, settlements, costs, expenses, judgments, fines, penalties or liabilities, except to the extent such losses, claims, damages, settlements, costs, expenses, judgments, fines, penalties or liabilities are due to the gross negligence or bad faith of the Custodian (as finally determined by a court of competent jurisdiction). The Security Holders hereby agree, severally and not jointly, to indemnify the Attorneys-In-Fact for and to hold the Attorneys-In-Fact harmless from and against any and all losses, claims, damages, settlements, costs, expenses, judgments, fines, penalties or liabilities incurred on any such Attorney-In-Fact’s part arising out of or in connection with the execution or delivery of this Agreement or acting as an Attorney-In-Fact pursuant hereto, as well as the cost and expenses of investigating and defending any such losses, claims, damages, settlements, costs, expenses, judgments, fines, penalties or liabilities, except to the extent such losses, claims, damages, settlements, costs, expenses, judgments, fines, penalties or liabilities are due to the gross negligence or bad faith of such Attorney-In-Fact (each as finally determined by a court of competent jurisdiction). The indemnity provided herein shall survive the termination of this Agreement or the resignation or removal of any Attorney-In-Fact or the Custodian. The costs and expenses incurred in enforcing this right of indemnification shall be paid by the Security Holders. Anything herein to the contrary notwithstanding, in no event shall the Custodian or the Attorneys-In-Fact be liable for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Custodian or the Attorneys-In-Fact has been advised of the likelihood of such loss or damage. Any liability of the Custodian will be limited to the amount of fees paid to the Custodian hereunder. The liability of each Security Holder under this Section 11 shall be limited to the net proceeds of the sale pursuant to the Stock Purchase Agreement payable to such Security Holder.

          12.         Notwithstanding anything in this Agreement to the contrary, the Custodian may resign hereunder upon thirty (30) days prior written notice given to the Security Holders.

          13.         The Custodian shall not be liable for any failures, delays or losses arising directly or indirectly out of conditions beyond its reasonable control, including, but not limited to, acts of government, exchange or market ruling, suspension of trading, work stoppages or labor disputes, civil disobedience, riots, rebellions, electrical or mechanical failure, computer hardware or software failure, communications facilities failures including telephone failure, war, fires, earthquakes, storms, floods, acts of God or similar occurrences.

          14.         The Custodian’s and the Attorneys-In-Fact’s acceptance of this Agreement by their execution hereof shall constitute an acknowledgment by such parties of the authorization herein conferred and shall evidence the Custodian’s and the Attorneys-in-Fact’s agreement to carry out and perform their respective obligations under this Agreement in accordance with its terms.

          15.         It is understood that the Attorneys-In-Fact shall serve entirely without compensation.

A-6

          16.         This Agreement may be executed in one or more counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument.

          17.         This Agreement shall be binding upon the Custodian, the Attorneys-In-Fact, the Security Holders, and the respective heirs, legal representatives, distributees, successors and assigns of the Security Holders.

          18.         THIS AGREEMENT SHALL BE GOVERNED BY AND CONTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

          19.         Each of the parties hereto (a) consents to submit itself or himself to the personal jurisdiction of the courts of the State of New York or any federal court sitting in the State of New York in the event that any dispute arises out of this Agreement or the transactions contemplated hereby, (b) agrees that it or he will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (c) agrees that it or he will not bring any action relating to this Agreement or the transactions contemplated by this Agreement in any court other than the courts of the State of New York or any federal court sitting in the State of New York.

          20.         Any notice given pursuant to this Agreement shall be deemed given if in writing and delivered in person, or if given by telephone or telegraph if subsequently confirmed by letter: (i) if to the Security Holders, to the addresses set forth of the signature pages hereto; (ii) if to the Custodian, to it at American Stock Transfer & Trust Company, 6201 15th Avenue, Brooklyn, NY 11219, Attention: Susan Silber; (iii) if to the Attorneys-In-Fact, to them as follows:

          21.         In case any provision in this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

[SIGNATURE PAGES TO FOLLOW]

A-7

          IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

[SECURITY HOLDER SIGNATURE PAGES TO FOLLOW]

A-8

* To be signed in EXACTLY the same manner as the certificates are registered.

Please certify the marital status of the Security Holder:

A-9

EXHIBIT A

SPOUSAL CONSENT

          I am the spouse of ______________________________. On behalf of myself, my heirs and legatees, I hereby join in and consent to the terms of the foregoing Custody Agreement and Irrevocable Power of Attorney and agree to the sale of the securities of Encore Capital Group, Inc. registered in the name of my spouse or otherwise registered, which my spouse proposes to sell pursuant to the Stock Purchase Agreement (as defined in the Custody Agreement and Irrevocable Power of Attorney).

Schedule A

Selling Stockholders

Exhibit B

ASSIGNMENT AGREEMENT

                    THIS ASSIGNMENT AGREEMENT (this “Agreement”) is made as of this 10^th day of May, 2007 between [•] (the “Assignor”) and JCF FPK I LP (the “Assignee”).

                    WHEREAS, Assignor and Assignee are parties to the Stock Purchase Agreement, dated as of April 20, 2007 (“the Stock Purchase Agreement”);

                    WHEREAS, Assignor is or may be a party to the registration rights agreement between MCM Capital Group, Inc. and the Initial Stockholders named therein dated as of February 21, 2002 and the amended and restated registration rights agreement between MCM Capital Group, Inc. and the several stockholders listed therein dated as of October 31, 2000, as amended by the First Amendment thereto dated March 13, 2001 (together, the “Registration Rights Agreements”);

                    WHEREAS, the Assignor desires to assign its right, title and interest in, under and with respect to the Registration Rights Agreements to the Assignee;

                    NOW, THEREFORE, in consideration of the mutual covenants and agreements herein made and intending to be legally bound, the parties hereto hereby agree as follows:

                    1.           Defined Terms. Capitalized terms used herein which are not defined herein shall have the respective meanings set forth in the Registration Rights Agreements.

                    2.           Assignment of Rights Under the Registration Rights Agreement. The Assignor hereby assigns to the Assignee in accordance with the applicable section of the Registration Rights Agreements all its present and future right, title and interest in, under and with respect to the Registration Rights Agreements with respect to the Registrable Securities (as defined therein) transferred to the Assignee pursuant to the Stock Purchase Agreement (the “Transferred Interest”).

                    3.           Acceptance. The Assignee acknowledges that it has received a copy of the Registration Rights Agreements and hereby accepts the assignment set forth in Section 2 subject to the terms and conditions of the Registration Rights Agreements.

                    4.           Binding Agreement. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Nothing contained in this Agreement shall be deemed to confer upon anyone other than the parties hereto (and their permitted successors and assigns) any legal right or equitable right, remedy or claim under or by reason of this Agreement.

                    5.           Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument.

B-1

                    6.           Assignment. This Agreement may not be assigned by any party without the prior written consent of the other parties, except that Assignee may assign its rights hereunder to any of its affiliates; provided that Assignee shall remain liable for its obligations hereunder.

                    7.           Amendments and Waivers. This Agreement may not be amended except by an instrument in writing signed by the parties hereto or waived except by an instrument in writing signed by the party granting the waiver.

                    8.           Section Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.

                    9.           Governing Law. This Agreement will be governed by, and interrupted in accordance with, the laws of the State of New York.

                    10.           Consent to Jurisdiction. Each of the parties hereto (a) consents to submit itself or himself to the personal jurisdiction of the courts of the State of New York or any federal court sitting in the State of New York in the event that any dispute arises out of this Agreement or the transactions contemplated hereby, (b) agrees that it or he will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (c) agrees that it or he will not bring any action relating to this Agreement or the transactions contemplated by this Agreement in any court other than the courts of the State of New York or any federal court sitting in the State of New York.

[Remainder of page intentionally left blank.]

B-2

                    IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.

B-3

---

Dates Referenced Herein   and   Documents Incorporated by Reference

				Referenced-On Page
This ‘SC 13D/A’ Filing		Date		First		Last			Other Filings
		5/10/07		2					4
Filed on:		4/23/07							4,  8-K,  SC 13D,  SC 13D/A
		4/20/07		1		25			3,  4,  8-K
		4/20/06		14
		2/21/02		7		25
		3/13/01		8		25
		10/31/00		8		25			4,  8-K
									List all Filings

↑Top

---

Filing Submission 0000930413-07-003699   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

---

---

Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help — Mon., Apr. 29, 4:12:36.1pm ET